A  HISTORY   OF   POLITICAL   THEORIES 
FROM  ROUSSEAU  TO  SPENCER 


THE  MACMILLAN  COMPANY 

NBW  YORK   •    BOSTON  ■    CHICAGO  •    DALLAS 
ATLANTA  -    SAN   FRANCISCO 

MACMILLAN  &  CO.,  Limited 

LONDON  •  BOMBAY  •  CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  Ltd. 

TORONTO 


A  HISTORY  OF  POLITICAL 
THEORIES 

FROM  ROUSSEAU  TO  SPENCER 


BY 

WILLIAM  ARCHIBALD  DUNNING,  LL.D.,  Litt.D. 

LIEBEK    FK0FES80R    OF    HISTORY    AND   POLITICAL    PHILOSOPHY 
IN    COLUMBIA    UNIVERSITY 


Weto  gotk 

THE   MACMILLAN   COMPANY 

1920 

All  rights  reserved 


COPTBIOHT,  1920, 

Bt  the  macmillan  company. 

Set  up  and  electrotyped.     Published  November,  1900. 


Tfotinotili  ^xtas 

J.  S.  Gushing  Co.  —  Berwick  &  Smith  Co. 

Norwood,  Mass.,  U.S.A. 


OP: 


PKEFACE 

The  present  work  concludes  the  History  of  Political 
Theories  of  which  two  earher  volumes  were  published 
in  1902  and  1905  respectively.  It  is  designed  in  this 
last  volume  to  carry  the  subject  through  the  first  eight 
decades  of  the  nineteenth  century.  Not  that  the  year 
1880  is  a  particularly  logical  stopping  point.  It  in  fact 
marks  no  era  of  importance  in  either  general  history  or 
the  special  field  which  is  the  subject  of  treatment.  The 
distinctive  purpose  served  by  the  chosen  date  is  to 
bring  the  history  to  an  end  while  it  is  still  history,  and 
thus  save  the  author  from  the  temptation  to  deal  with 
ideas  that  cannot,  in  the  nature  of  things,  be  seen  yet 
in  their  true  perspective. 

The  first,  fourth  and  seventh  chapters  of  this  volume 
have  appeared  in  the  Political  Science  Quarterly  in  sub- 
stantially their  present  form.  For  suggestive  com- 
ments upon  various  parts  of  the  text  I  am  indebted  to 
Professor  F.  W.  Coker,  of  the  Ohio  State  University, 
and  to  my  colleagues  at  Columbia,  Professors  Munroe 
Smith  and  Carlton  J.  H.  Hayes.  The  greatest  in- 
spiration to  me  to  continue  the  work  to  its  completion 
has  been  the  interest  in  the  subject  manifested  by  my 
students  past  and  present,  and  to  them  I  am  privileged 
to  offer  here  this  grateful  acknowledgment. 

Columbia  University, 
September  6,  1920. 


CONTENTS 

CHAPTER  I 
Jean  Jacques  Rousseau 

PAGE 

1.  Source  and  Method  of  His  Philosophy       ....  1 

2.  Nature  and  Society 7 

3.  The  Social  Contract 16 

4.  Sovereignty  and  Law 21 

5.  Government 29 

6.  Strength  and  Influence  of  Rousseau's  Work       ...  38 
References 44 

CHAPTER   II 
The  Rise  op  Economic  and  Juristic  Science 

1.  European  Politics  and  World  Politics         ....  45 

2.  French  Social  and  Moral  Philosophy          ....  50 

3.  Physiocrats  and  Economists 57 

4.  Adam  Ferguson 65 

5.  The  Legalists 71 

References 81 

CHAPTER   III 
The  American  and  the  French  Revolution 

1.  General  Trend  of  Events 82 

2.  American  Ideas  and  Influence 91 

3.  Sieyes         .         . 100 

4.  Condorcet 106 

5.  Thomas  Paine 110 

6.  The  French  Constitutions 116 

7.  Conclusion 126 

References          .........  129 

vii 


Viii  CONTENTS 

CHAPTER   IV 
The  German  Idealists 

PAOB 

1.   Immanuel  Kant 130 

2    Johann  Gottlieb  Fichte 137 

3.  Wilhelm  von  Humboldt 148 

4.  Georg  Wilhelm  Friedrich  Hegel 154 

5.  Influence  of  the  German  Idealists 166 

References 170 

CHAPTER  V 
Theories  op  Conservatism  and  Reaction 

1.  General  Character  and  Influence 171 

2.  Edmund  Burke 176 

3.  The  Marquis  de  Bonald 184 

4.  Joseph  de  Maistre 190 

5.  Ludwig  von  Haller 195 

References '  .        .        .  206 

CHAPTER  VI 
The  English  Utilitarians 

1.  Progress  of  Social  and  Political  Reform      ....  207 

2.  Jeremy  Bentham 211 

3.  John  Austin 224 

4.  John  Stuart  Mill 235 

5.  Conclusion 243 

References 247 

CHAPTER  VII 

Theories  op  Constitutional  Government  i- 

1.  The  Struggle  for  Constitutions  on  the  Continent        .         .  248 

2.  Types  of  the  Realized  Constitutions  .....  253 

3.  Benjamin  Constant :   His  Theory  of  the  Royal  Power       .  259 

4.  Guizot,  the  Doctrinaire 263 

5.  Tocqueville  and  Realized  Democracy         ....  268 

6.  German  Constitutional  Theory :  The  Bundesstaat    .        .  278 


CONTENTS  IX 

PAGB 

7.   Conclusion 288 

References 291 


CHAPTER  VIII 

The  Theory  and  Practice  op  Nationalism 

1.  The  Struggles  for  National  Independence  and  Unity          .  292 

2.  Theory  of  the  State  as  Sovereign  Person   ....  299 

3.  The  Nation  as  a  Unit  of  Race  and  Language     .         .         .311 

4.  The  Nation  as  a  Geographic  Unit      .....  316 

5.  Nation  and  Nationality 320 

6.  The  National  State 326 

7.  Summary  and  Conclusion 334 

References 339 

CHAPTER   IX 
Societarian  Political  Theory 

1.  The  Rise  of  Socialism  and  of  Sociology      ....  340 

2.  Owen  and  Fourier 348 

3.  Saint-Simonian  Doctrine    .......  355 

4.  The  Beginnings  of  Anarchism 362 

5.  Marxist  Doctrine 371 

6.  Lorenz  von  Stein 377 

7.  Auguste  Comte 387 

8.  Herbert  Spencer         ........  395 

9.  General  Influence  of  Societarian  Theory    ....  402 
References 408 

CHAPTER   X 

The  General  Course  op  Political  Theory      .  409 

^  f  '    > 


POLITICAL  THEORIES 

CHAPTER  I 

JEAN   JACQUES   ROUSSEAU 

1.  Source  and  Method  of  His  Philosophy 

The  contributions  of  Jean  Jacques  Rousseau  to 
political  theory  can  be  rightly  understood  only  through 
a  pretty  clear  idea  of  the  man  himself.  He  was  no 
statesman,  no  scholar,  no  philosopher;  and  he  gloried 
in  the  fact.^  Though  he  claimed  to  be  a  man,  he 
never  developed  morally  beyond  the  stature  of  a  spoiled 
child.  He  was,  however,  a  child  of  genius.  His  mind 
was  inordinately  sensitive  to  certain  types  of  impression, 
and  his  faculty  for  literary  expression  was  remark- 
able. Upon  any  subject  that  engaged  his  errant  and 
erratic  fancy,  he  could  concentrate  a  fervid  and  capti- 
vating eloquence,  a  wealth  of  seductive  speculation 
and  a  plausible  imitation  of  logical  force.  Certain 
problems  of  social  and  political  life  early  attracted 
Rousseau's  attention.  Essays  upon  these  topics  re- 
vealed the  vigor  and  grace  of  his  style,  and  struck  the 
dominant  chord  of  public  feeling.     In  1750  he  came 

^"Lecteurs,  souvenez-vous  tou jours  que  celui  qui  vous  parle 
n'est  ni  un  savant,  ni  un  philosophe ;  mais  un  homme  simple, 
ami  de  la  verite,  sans  parti,  sans  systeme,  un  solitaire,  qui  vivant 
peu  avec  les  hommes  a  moins  d'oecasions  de  s'imboire  de  leurs 
prejuges  .  .  ."     Emile,  liv.  ii,  in  (Euvres,  IV,  152. 

B  1 


2  POLITICAL  THEORIES 

suddenly  to  fame  by  an  essay  maintaining  that  the 
progress  of  the  sciences  and  arts  had  tended  to  degrade 
the  morals  of  men.^  Four  years  later  he  further  de- 
veloped this  general  thesis  in  the  famous  Discourse 
on  the  Origin  and  Basis  of  Inequality  among  Men. 
From  this  time  political  and  social  themes  formed  the 
staple  of  his  thinldng  till  the  culmination  of  his  work 
in  the  Social  Contract  and  the  Emile,  published  in  1762. 
It  is  rare  in  the  history  of  political  philosophy  that 
the  source  of  influential  theory  can  be  so  precisely 
traced  to  mdividual  personality  as  in  the  case  of 
Rousseau.  He  was  of  a  sensitive;  emotional,  self- 
conscious  temperament,  impatient  of  control,  even  of 
self-control,  and  resentful  toward  every  institution  or 
convention  that  suggested  restriction  or  regularity. 
Of  agreeable  social  relations  with  rational  and  cultivated 
men  he  was  wholly  incapable.  Efforts  of  many  such 
men,  admirers  of  his  genius  and  his  theories,  to  estab- 
lish and  maintain  cordial  relations  with  Rousseau 
ended  uniformly  in  failure,  with  a  great  access  of  bitter- 
ness and  rancor  on  his  part  toward  things  in  general. 
Only  one  himian  being  seems  to  have  possessed  the 
power  to  induce  more  than  a  feeble  flicker  of  the  ru- 
dimentary social  instinct  in  Rousseau,  and  this  was  the 
coarse  and  unlovely  woman  with  whom  for  a  third  of 
a  century  he  lived  in  squalid  and  irregular  domestic 
relations.^    Practically  destitute  of  the  qualities  that 

'  This  essay  took  the  prize  in  a  competition  set  by  the  Academy 
of  Dijon  on  the  subject:  "Si  les  progres  des  sciences  et  des  arts  a 
contribue  a  corrompre  ou  a  epurer  les  mceurs."  Dreyfus-Brissac, 
Du  Contrat  Social,  p.  iv. 

^  Morley,  Rousseau,  1,  chap.  iv. 


ROUSSEAU  AND   HIS  TIMES  3 

make  human  society  possible,  his  instinct  was  to  dis- 
parage the  conspicuous  features  of  social  hfe.  His 
own  incapacity  for  orderly  and  useful  commerce  with 
his  kind  he  generalized  into  a  characteristic  of  the  race ; 
and  the  protest  of  his  vain  and  sensitive  spirit  against 
the  restraints  of  law  and  custom  became  in  his  writings 
the  universal  truth  of  human  freedom.  He  was 
himself  the  free  and  noble  savage  whom  he  pictured 
so  pleasingly  in  his  works.  The  Confessions,  in  which 
he  presents  himself  with  deliberate  frankness,  contain 
scarcely  more  of  his  intellectual  autobiography  than 
can  be  found  in  his  Discourses  and  other  political  writ- 
ings. 

Such  a  temperament  as  Rousseau's  could  in  no  age 
and  no  place  have  found  a  more  stimulating  environ- 
ment than  the  middle  eighteenth  century  in  France. 
The  smouldering  fire  of  protest  that  determined  his 
restless  and  unhappy  private  life  became  a  devouring 
flame  when  he  attained  publicity  and  turned  his  atten- 
tion to  the  religion,  morals,  manners  and  politics  of 
his  day.  Society  on  the  continent,  and  more  than  else- 
where, perhaps,  in  France,  abounded  in  conditions  that 
were  in  the  highest  degree  odious  to  thoughtful  men. 
Feudal  class  distinctions,  mediaeval  theology  and  divine- 
right  monarchy  were  salient  facts  of  the  situation. 
The  nobility  still  retained  their  privileges,  though  the 
justification  for  these  had  long  disappeared  with  the 
loss  of  real  political  power;  the  clergy  also  retained 
their  privileges,  though  their  usefulness  was  waning 
through  dissoluteness  and  dissensions  within  and 
scepticism   without   their   circle.     Louis   XV,   as   an 


4  POLITICAL  THEORIES 

embodiment  of  God-given  absolute  power,  was  con- 
tributing all  that  his  sodden  and  lustful  nature  could 
to  destroy  the  sense  of  duty  and  respect  on  which  the 
whole  fabric  of  the  monarchic  system  rested. 

The  reaction  of  rational  philosophy  against  obscurant- 
ism and  despotism  was  well  under  way  when  Rousseau 
appeared  on  the  scene.  Voltaire  and  Montesquieu  had, 
in  their  widely  different  methods,  roused  the  spirit  of 
revolt.  Diderot  was  just  planning  that  Encyclopcedia 
which  in  the  scope  and  disconnectedness  of  its  contents 
so  well  typified  the  genius  of  its  projector,  and  in  its 
reputation  and  fate  so  well  expressed  the  antagonism 
between  the  established  political  system  and  the  aspira- 
tions of  current  philosophy.  Rousseau  wrote  his 
earliest  political  essays  with  the  sympathetic  coopera- 
tion of  Diderot.  Before  the  Social  Contract  appeared, 
however,  the  two  men  were  wide  asunder  personally, 
and  Rousseau  had  taken  a  course  in  his  political 
speculation  that  put  him  far  outside  the  Encyclopaedist 
group.  It  was  not  in  his  nature  to  react  mildly  against 
a  situation  that  galled  him  —  as  most  facts  of  actual 
life  did.  He  knew  not  how  to  stop  short  of  the  utter- 
most limit  of  protest.  Liberal  philosophers  in  Ger- 
many and  France  itseK  had  for  half  a  century  waged 
vigorous  war  upon  the  oppressive  and  deadening  prin- 
ciples and  practices  of  the  old  regime.^  The  goal  of 
their  demands  was,  however,  merely  a  tolerant  and 
enlightened  despotism.  Even  those  who,  like  Montes- 
quieu, conceived  that  salvation  was  to  be  found  in  the 
English  system,  looked  for  only  some  beneficent  re- 

^  Political  Theories  from  Luther  to  Montesquieu,  pp.  373,  392. 


SOURCES  OF  THE  SOCIAL  CONTRACT  5 

arrangement  of  the  organs  of  government.  RousseaU; 
when  he  set  about  projecting  political  reform,  never 
paused  till  he  had  provided  for  the  total  remodelling 
of  government,  state  and  society  itself. 

But  the  radical  character  of  Rousseau's  social  and 
political  theories  was  not  due  to  any  novelty  in  the 
ideas  out  of  which  they  were  made.  He  lighted  up 
and  magnified,  but  he  did  not  create.  Old  and  well- 
known  concepts  were  played  upon  by  his  brilliant 
fancy  till  they  were  transfigured  and  made  to  appeal 
to  men  with  an  uncanny  attractiveness.  After  the 
great  success  of  his  Discourse  on  the  Progress  of  the 
Sciences  and  Arts  he  resolved  to  write  a  systematic 
work  covering  the  whole  field  of  political  science. 
The  Social  Contract  is  a  fragment  of  this  work  —  the 
only  part  of  it  that  ever  took  shape.  In  preparing  for 
this  enterprise,  Rousseau  familiarized  himself  with 
some  of  the  chief  writers  on  political  philosophy. 
Pufendorf,  Locke  and  Montesquieu  found  especial 
favor  in  his  eyes,  and  their  ideas  were  freely  appro- 
priated with  and  without  acknowledgment.  Grotius 
and  Hobbes  excited  his  wrath ;  protesting  against  the 
tendency  of  critics  to  praise  Grotius  while  execrating 
Hobbes,  Rousseau  included  both  in  the  same  con- 
demnation. "The  truth  is,"  he  said,  "that  their 
principles  are  exactly  alike,  distinguishable  only  in 
expression.  They  differ  also  in  method.  Hobbes 
supports  himself  on  sophisms,  Grotius  on  poets ;  in  all 
else  they  are  on  common  ground."  ^ 

Besides  the  influence  of  his  rather  superficial  study 

*  ^mile,'liv.  v,  in  CEuvres,  V,  403. 


6  POLITICAL  THEORIES 

of  earlier  philosophers,  Rousseau's  thought  showed 
plainly  the  influence  of  his  birthplace.  It  was  with 
real  pride  that  he  described  himself  on  the  title-page 
of  the  Social  Contract  as  a  "citizen  of  Geneva."  The 
Swiss  city-state  furnished  him  with  many  suggestions 
of  a  system  in  marked  contrast  to  that  which  prevailed 
in  France,  and  clearly  strengthened  his  predilection 
for  popular  government.  Even  more  important  was 
the  stimulus  it  gave  to  that  unbounded  admiration 
with  which  he,  in  common  with  all  his  contemporaries, 
regarded  the  Greek  and  Roman  republics.  He  had 
no  deep  or  scholarly  acquaintance  with  the  history  of 
the  ancient  city-states,  but  he  was  full  of  the  literary 
tradition  that  clothed  their  institutions  with  the  per- 
fection of  wisdom  and  their  heroes  with  the  perfection 
of  virtue.  Not  Machiavelli  nor  Montesquieu  was  more 
satisfied  than  he  to  clinch  a  demonstration  with  a 
reference  to  these  overworked  commonwealths.  Rous- 
seau's nimble  logic  could  use  them  to  prove  a  rule 
either  by  their  conformity  to  it  or  by  their  deviation 
from  it.  Thus,  he  maintained  that  every  state  is  bound 
to  die ;  for  "  if  Sparta  and  Rome  have  perished,  what 
state  can  hope  to  endure  forever?"^  On  the  other 
hand,  his  contention  that  a  system  of  public  edu- 
cation was  an  essential  feature  of  every  good  state  was 
confronted  by  the  fact  that  Rome  knew  nothing  of  it. 
That,  he  explained,  signified  nothing;  since  "Rome 
was  for  five  centuries  a  continuous  miracle,  such  as  the 
world  must  never  hope  to  see  again."  ^ 

^  Contrat  Social,  III,  xi. 

2  Economie  Politique,  in  (Euvres  (1782),  I,  p.  391. 


ROUSSEAU  AND   HIS  FACTS  7 

It  was  at  times  an  amiable  delusion  of  Rousseau's 
that  his  philosophy  was  fundamentally  a  series  of  in- 
ductions from  the  observation  of  ordinarily  neglected 
facts. -^  In  some  measure  this  was  true  of  his  ideas 
about  education,  as  expressed  in  the  Emile;  it  was 
wholly  untrue  of  his  theoretical  politics,  in  the  Dis- 
course on  Inequality  and  the  Social  Contract.  After 
his  reputation  was  made,  he  was  applied  to  for  sug- 
gestions on  the  very  concrete  political  situation  in 
two  troubled  lands,  Corsica  and  Poland.  His  responses 
embodied  many  shrewd  and  striking  comments  on 
the  actual  facts  involved.^  But  more  important  here 
were  the  persistency  and  adroitness  with  which  he 
applied,  at  whatever  effort  of  twisting  and  straining, 
the  dogmas  of  his  earlier  speculation ;  and  these  were 
no  inductions  from  his  own  observation  of  facts  or 
reading  of  histoiy,  but  merely  the  product  of  judicious 
selection  among  the  accumulated  doctrines  and  tra- 
ditions of  a  priori  political  science. 

2.   Nature  and  Society 

Rousseau  approached  political  theory  by  the  well- 
worn  pathway  of  the  "state  of  nature."  As  to  what 
precisely  this  term  signified,  he  was  not  clear  and 
consistent.  He  used  it  in  practically  all  the  various 
senses  that  had  been  attached  to  it  in  its  long  and 

^  "Mes  raisonnements  sont  moins  fondes  sur  les  prineipes  que 
sur  des  faits."  Emile,  ii,  in  (Euvres,  IV,  152.  ".  .  .  je  donne  le 
moins  qu'il  est  possible  au  raisonnement,  et  ne  me  fie  qu'S,  I'ob- 
servation."     Ibid.,  iv,  in  (Euvres,  IV,  446. 

2  For  his  Corsiean  thoughts  see  Morley,  Rousseau,  II,  99  et  seq., 
and  references.  On  Poland  see  his  Considerations  sur  le  gouverne- 
ment  de  Pologne,  in  (Euvres  (1782),  I,  417. 


8  POLITICAL  THEORIES 

notable  career.  Throughout  the  fluctuations  of  his 
usage,  one  idea  alone  appeared  unmistakable,  namely, 
that  the  natural  state  of  man  was  vastly  preferable  to 
the  social  or  civil  state,  and  must  furnish  the  norm 
by  which  to  test  and  correct  it. 

In  the  Discourse  on  Inequality  the  natural  man  ap- 
pears first  as  the  solitar}^  savage,  living  the  happy, 
care-free  life  of  the  brute,  without  fixed  abode,  without 
articulate  speech,  with  no  needs  or  desires  that  cannot 
be  satisfied  through  the  merest  instinct.  Rousseau's 
handling  of  this  conception  compares  favorably  with 
that  of  the  best  among  the  long  line  of  literary  artists 
who  have  used  it.  More  apparent  than  in  most  of 
them,  however,  are  his  admiration  and  sympathy  for 
the  savage.  The  steps  by  which  men  emerge  from  their 
primitive  state  are  depicted  with  fascinating  art,  but 
the  author's  regret  at  their  success  pervades  the  picture. 
In  the  natural  man  are  to  be  found  the  elements  of 
perfect  happiness.  He  is  independent,  contented,  self- 
sufficing.  For  others  of  his  own  species  he  has  no 
need,  and  he  regards  them  with  the  same  indifference 
that  he  feels  toward  other  animals.  Save  for  the 
casual  and  momentary  union  that  perpetuates  the 
race,  nothing  draws  him  to  commerce  with  his  kind. 
He  is  not,  however,  the  timid,  cowering  creature  that 
Montesquieu  described,  fearful  of  eveiy  force  around 
him.  JNor  on  the  other  hand  is  he  the  energetic, 
aggressive  monster  of  Hobbes,  ceaselessly  driven  by 
his  passions  to  war  upon  his  fellows.  Only  through 
society  does  man  become  unbalanced  by  either  fear 
or   ambition;    the    "simple,    regular    (uniforme)    and 


THE   STATE   OF  NATURE  9 

solitary"  life  of  nature  involves  none  of  the  evils  of 
either. 

The  natural  state,  as  thus  conceived,  is  a  state  of 
substantial  equality.  No  baneful  distinction  is  to  be 
seen  among  the  individuals  who  pursue  in  isolation  the 
placid  routine  of  satisfying  their  physical  needs.  But 
the  deadly  seeds  of  a  different  order  are  ready  to 
germinate.  With  no  necessary  ground  for  it  in  his 
description  of  the  savage  state,  Rousseau  assumes  that 
the  human  race  becomes  increasingly  numerous ;  di- 
vergencies of  soil,  climate  and  season  then  cause 
differences  in  manner  of  life  among  men.  On  the  shores 
of  the  seas  and  the  rivers  they  catch  fish  and  invent 
the  hook  and  line.  In  the  forests  they  become  hunters 
and  invent  the  bow  and  arrow.  Fire  is  discovered  by 
some  accident,  and  the  fortunate  discoverers  develop 
its  utilities.  Stone  and  then  metal  tools  are  made. 
Economic  progress  moves  apace,  and  rude  huts  in- 
stead of  casual  caves  become  places  of  abode.  With 
the  appearance  of  fixed  homes,  family  and  property 
are  at  hand,  and  the  knell  of  hiuiian  equality  is  sounded. 
Social  organization  has  begun.  Intercourse  of  in- 
dividuals and  families  becomes  common  and  through 
it  the  ideas  of  competition  and  preference  are  de- 
veloped. Evils  follow  in  their  train,  but  this  primitive 
society  is  not,  to  Rousseau,  an  intolerable  state. 
Looked  upon  as  a  mean  between  the  indolence  of  the 
savage  state  and  the  too  intense  activity  of  the  later 
phase,  it  appears  to  him  the  happiest  period  in  the  life 
of  humanity  —  "the  least  subject  to  revolutions,  the 
best  for  man." 


10  POLITICAL  THEORIES 

It  is  quite  characteristic  of  Rousseau  that  while  he 
is  describing  the  savage  state  he  is  disposed  to  con- 
sider it  as  the  happiest  and  best,  and  when  he  has 
moved  on  to  the  tribal  and  early  social  state,  this  in 
turn  appeals  to  him  as  preferable.  We  shall  see  that 
in  time  he  has  kind  words  for  even  fully  developed 
society,  which  in  the  Discourse  is  the  summation  of 
evil. 

Man's  emergence  from  the  primitive  social  con- 
dition must  have  been  due,  Rousseau  says,  to  some 
fatal  chance.  His  exposition  of  the  process  reveals  a 
number  of  catastrophes  that  contributed  to  the  sad 
result.  The  arts  of  agriculture  and  metallurgy  were 
discovered ;  and  in  the  apphcation  of  them  men  had 
need  of  one  another's  aid.  Cooperation  revealed  and 
emphasized  the  diversity  of  men's  talents  and  pre- 
pared thus  the  inevitable  result.  The  stronger  man 
did  the  greater  amount  of  work;  the  craftier  got 
more  of  the  product.  Thus  appeared  the  difference 
of  rich  and  poor  —  the  prolific  source  of  all  the  other 
forms  of  inequality.  Property  was  doing  its  dis- 
astrous work.  The  climax  came  with  the  diabolical 
device  of  property  in  land. 

"  The  first  man  who,  after  enclosing  a  piece  of  ground, 
bethought  himself  to  say  'this  is  mine,'  and  found 
people  simple  enough  to  believe  him,  was  the  real 
founder  of  civil  society."  ^ 

War,  murder,  wretchedness  and  horror  without  end 
followed  this  fatal  proceeding.  Rich  and  poor  were 
ranged  against  each  other  in  unrelenting  hostility. 

*  Discours  sur  Vlnegalite,  pt.  ii,  beginning. 


ORIGIN   OF  INEQUALITY  11 

Evils  that  had  been  unknown  in  the  savage  state,  and 
but  sHghtly  manifested  in  primitive  society,  became 
now  universal.  To  escape  them,  or  at  least  to  enable 
men  to  endure  them,  civil  society  was  instituted. 
This  was  no  recurrence  to  the  natural  order.  It  was, 
on  the  contrary,  an  enormous  stride  away  from  nature, 
and  the  introduction  of  still  another  mode  of  inequality 
among  men.  Its  inevitable  consequence  was  the  final 
stage  of  inequality,  the  condition  of  master  and  slave. 
Such  was,  in  general  outline,  Rousseau's  thought  in 
the  Discourse  on  Inequality.  With  proper  allowance 
for  the  incoherence  and  inconsistencies  of  the  work,  it 
may  be  said  that  his  state  of  nature  is  on  the  whole  a 
historical  rather  than  a  psychological  concept.  Yet 
Rousseau,  like  Locke,  who  is  strongly  suggested  by 
many  points  in  the  Discourse,  refrains  from  insisting 
on  the  objective  reality  of  the  conditions  he  describes. 
The  state  he  is  considering  is  one,  he  says,  "which  no 
longer  exists,  which  perhaps  has  not  existed  and  which 
probably  never  will  exist,  but  which  must  be  accurately 
understood  in  order  to  get  just  notions  as  to  con- 
temporary society."  ^  This  view  of  his  task  would 
indicate  that  he,  like  Hobbes  and  Locke,  was  con- 
cerned merely  with  formulating  the  abstract  qualities 
of  human  nature.  But  Rousseau's  poetic  faculty  was 
too  active  and  its  pictures  too  vivid  to  leave  room  for 
the  impression  that  his  natural  man  was  an  abstrac- 
tion or  his  state  of  nature  a  mere  fancy.  To  one  who 
does  not  read  the  warning  of  the  preface,  the  Dis- 
course can  be  nothing  but  an  eloquent  and  moving 
1  Discours,  Preface. 


12  POLITICAL  THEORIES 

narrative  of  the  actual  descent  of  man  from  natural 
peace  and  blessedness  to  social  servitude  and  woe. 

Psychological  analysis  is  not  wholly  wanting  in  the 
Discourse.  Rousseau  employs  it,  suo  more,  with  little 
pretence  to  consistency,  but  sometimes  with  rather 
striking  effect.  He  takes  pains  to  repudiate  at  the 
outset  the  idea  that  man's  life  in  the  state  of  nature 
is  regulated  by  reason.  The  truly  natural  man,  i.e., 
the  savage,  acts  on  two  principles  that  are  anterior 
to  reason,  namely,  the  feeling  of  interest  in  his  own 
welfare  and  preservation,  and  the  feeling  of  repugnance 
toward  the  sight  of  death  or  suffering  in  any  animate 
creature,  especially  a  human  being.  These  emotions, 
rather  than  reason,  determine  the  conduct  of  men 
throughout  the  various  phases  of  the  natural  state  and 
give  way  to  reason  only  when  degeneration  has  gone 
so  far  that  civil  society  must  be  constituted.  All  the 
rules  of  natural  right  and  natural  law  flow  directly 
and  exclusively  from  the  operation  of  these  primary 
sentiments  —  self-interest  and  pity.^ 

This  curious  theory,  whatever  other  sources  it  had, 
was  an  obvious  generalization  of  certain  conspicuous 
traits  of  Rousseau's  own  character.  He  was  extremely 
selfish  and  extremely  sensitive  to  suffering  in  others  — 
qualities  that  are  notoriously  quite  compatible  with 
each  other.  One  immediate  application  of  his  theory 
was  in  refuting  the  dogma  of  Hobbes  that  the  state 
of  nature  was  a  state  of  war.  The  innate  repugnance 
to  suffering  in  his  kind  would  necessarily  operate  to 
limit  the  brutality  of  man  to  man. 

*  Discours,  Preface. 


BACK  TO   NATURE  13 

It  is  in  the  Emile  that  Rousseau  most  elaborately 
develops  his  conception  of  the  state  of  nature  and  the 
natural  man  as  a  philosophic  ideal  rather  than  a  his- 
torical reality.  The  general  theme  of  the  work  is  the 
rearing  and  training  of  a  child;  and  the  unceasing  ex- 
hortation of  the  author  is  to  abandon  methods  that 
have  their  origin  or  justification  in  the  real  or  fancied 
needs  of  social  life.  "Back  to  nature"  is  his  cry. 
This  does  not  mean  that  society  must  be  destroyed 
and  the  savage  state  resumed.  It  means  merely  that 
nature  must  be  the  rule  for  men  in  society.  The  in- 
coherence of  Rousseau's  definitions  and  explanations 
and  rhapsodies  about  this  matter  is  in  his  most  char- 
acteristic style ;  and  seeking  to  comprehend  clearly 
his  conception  of  "nature"  is  like  trying  to  visualize 
the  fauna  of  the  Apocalypse. 

His  purpose  is  in  a  general  way  intelligible ;  it  is  to 
strip  the  human  mind  of  all  the  attributes  that  are  in 
origin  or  manifestation  ascribable  to  social  life.  The  res- 
idue is  the  mental  equipment  of  the  natural  man.  At 
birth  the  human  being  is,  through  his  senses,  susceptible 
to  impressions  from  without.  Toward  the  objects  that 
create  the  impressions  he  has  a  feeling  of  attraction  or  re- 
pulsion according  as  they  are  agreeable  or  disagreeable, 
and,  as  his  mind  develops,  according  to  the  rational 
judgment  he  forms  about  their  effect  upon  his  happi- 
ness. But  meanwhile  he  develops  and  falls  under  the 
constraint  of  habits  and  opinions,  and  through  these  his 
dispositions  toward  things  are  modified.  "Prior  to  that 
modification  they  constitute  what  I  call  nature  in  us."  ^ 

^  Emile,  liv.  i,  ad  inil. 


14  POLITICAL  THEORIES 

Such  is  the  nearest  approach  to  precise  definition 
that  Rousseau  gives  his  readers.  Despite  its  doubtful 
psychology  it  might,  if  adhered  to,  serve  a  useful 
philosophic  purpose.  But  he  does  not  adhere  to  it. 
One  clear  feature  of  the  natural  man  as  defined  above 
is  the  use  of  his  reason  in  judging  his  surroundings. 
Elsewhere  Rousseau  declares  it  characteristic  of  the 
natural  man  "that  he  be  .  .  .  subject  to  no  govern- 
ment save  that  of  his  own  reason."  ^  With  the  rational 
faculty  thus  emphasized,  it  is  discouraging  to  find 
pervading  all  Rousseau's  philosophy,  and  often  reiter- 
ated in  set  terms,  the  idea  that  reason  and  nature  are 
antithetic  and  incompatible  with  each  other.  Re- 
flection and  its  practical  results  he  proclaims  to  be 
the  pernicious  product  of  society  and  its  artificialities. 
"By  nature  man  scarcely  thinks."^  "The  man  who 
reflects  is  a  corrupt  creature."  ^  Our  natural  feelings 
(passions)  alone  give  us  peace  and  true  hberty.  So 
"^oon  as  we  begin  to  reason  and  to  project  ourselves 
by  induction  and  analogy  into  times  and  places  and 
relations  unknown  to  our  original  condition,  oppres- 
sion and  misery  crowd  upon  us.  Thus,  for  example, 
man  afflicts  himself  through  unhappy  foresight  with 
the  torture  of  anticipating  death,  while  to  unreflecting 
creatures  it  comes  without  distress. 

In  no  smaU  measure  the  vagaries  and  inconsistencies 

t.      ^  Emile,  iv,  in  (Euvres,  IV,  447. 

*  "  Naturellement  rhomme  ne  pense  guere."  Ibid.,  v,  m  (Euvres, 
V,  302. 

^"Si  [la  nature]  vous  a  destines  a  etre  sains,  j'ose  presque 
assurer  que  I'etat  de  reflexion  est  un  etat  centre  nature,  et  que 
I'homme  qui  medite  est  un  animal  deprave."  Discours  sur 
VIn6galite,  pt.  i. 


ROUSSEAU   ON  REASON  15 

of  Rousseau's  views  about  nature  and  reason  are  due 
to  the  phrase-making  instinct  of  the  hterary  artist. 
He  never  thought  of  logic  when  the  opportunity  for 
a  pretty  turn  of  expression  was  at  hand.  "Forgive  me 
my  paradoxes,"  he  wrote :  "I  Hke  better  to  be  a  man 
of  paradoxes  than  to  be  a  man  of  prejudices."  ^  Nor 
did  he  suspect  that  he  was  a  man  of  both.  The  fixed 
and  ever  present,  if  not  always  conscious,  motive  of 
his  thiaking  was  to  disparage  those  features  of  social 
life  that  w^ere  distasteful  to  himself.  The  violence  of 
his  protest  was  as  excessive  in  dealing  with  the  natural 
man  in  society  as  it  had  been  in  dealing  with  the  natural 
man  prior  to  society ;  the  one,  like  the  other,  became 
an  inhuman  fantasy. 

In  stressing  the  emotions  and  minimizing  the  reason 
as  the  basis  of  the  state  of  nature,  Rousseau  dissociated 
his  doctrine  from  the  whole  philosophical  tradition 
on  this  point.  Reason  had  been  always  the  char- 
acteristic ingredient  of  the  pre-social  or  pre-civil  order. 
Grotius,  Hobbes,  Pufendorf,  Locke,  and  all  their  pred- 
ecessors, great  and  small,  had  found  man  in  the  state 
of  nature  endowed  with  reason,  and  enabled  by  means 
of  it  to  rise  into  social  and  political  organization. 
Rousseau,  with  whatever  vacillation  and  inconsistency, 
strove  in  general  to  represent  reason  and  all  philosophy 
as  a  calamitous  aberration,  deluding  men  with  visions 
that  brought  them  to  ruin. 

1  Emile,  liv.  ii,  in  (Euvres,  IV,  116. 


16  POLITICAL  THEORIES 

3.   The  Social  Contract 

The  most  pestilential  reasoning  and  philosophy  was, 
in  Rousseau's  opinion,  that  which  sustained  existing 
forms  of  political  and  social  inequality.  "Nothing 
can  be  farther  from  the  law  of  nature,  however  we 
define  it,  than  that  a  child  give  orders  to  an  old  man, 
an  imbecile  direct  a  sage,  and  a  handful  of  people 
be  gorged  with  luxuries  while  the  starving  multitude 
lacks  the  necessities  of  life."  ^  Yet  society  and  govern- 
ment, though  deplorable,  were,  he  admitted,  inevitable. 
It  was  necessaiy  therefore  to  find  some  rational  form 
through  which  their  existence  might  be  justified.  In  his 
Social  Contract,  Rousseau  assumed  the  role  of  construc- 
tive philosopher  and  presented  a  theory  of  the  state. 

The  precise  problem  that  he  undertakes  in  this 
work  to  solve  is  characteristically  formulated  in  the 
famous  phrases : 

Man  is  born  free  and  everywhere  he  is  in  chains.  One 
who  believes  himself  the  master  of  the  rest  is  only  more  of  a 
slave  than  they.^  How  does  that  change  come  about?  I 
do  not  know.  What  can  render  it  legitimate  (legitime)'? 
That  question  I  think  I  can  answer.^ 

*  Discours  sur  VInegalite,  end. 

2  This  paradox  is  the  topic  of  an  eloquent  passage  elsewhere : 
*'.  .  .  ta  liberte,  ton  pouvoir,  ne  s'etendent  qu'aussi  loin  que  tes 
forces  naturelles  et  pas  au  dela;  tout  le  reste  n'est  qu'esclavage, 
illusion,  prestige.  .  .  .  Jamais  ton  autorite  reelle  n'ira  plus  loin 
que  tes  facultes  reeUes.  Sitot  qu'il  faut  voir  par  les  yeux  des  autres, 
il  faut  vouloir  par  leurs  volontes.  Mes  peuples  sont  mes  sujets, 
dis-tu  fierement.  Soit.  Mais  toi,  qu'es-tu?  Le  sujet  de  tes 
ministres.  Et  tes  ministres,  a  leur  tour,  que  sont  ils?  les  sujets 
de  leurs  commis,  de  leurs  maitresses,  les  valets  de  leurs  valets  .  .  . 
Vous  direz  toujours  :  Nous  voulons ;  et  vous  ferez  toujours  ce  que 
voudront  les  autres."     Emile,  liv.  ii,  in  CEuvres,  IV,  95. 

'  Contrat  Social,  I,  i. 


THE   SOCIAL  PACT  17 

That  is  to  say,  the  hberty  and  equahty  that  char- 
acterize the  state  of  nature,  in  whatever  sense  the  term 
is  used,  are  in  the  civil  state  gone.  He  will  justify 
their  disappearance.  And  he  does  it,  in  his  usual  way, 
by  proving  that  they  are  not  gone  at  all,  but  subsist 
as  fully  after,  as  before,  the  institution  of  government. 
Nature  and  pohtical  society,  liberty  and  authority, 
are  absolute  logical  contradictories  in  the  Discourse 
and  the  Emile;  they  become  in  the  Social  Contract 
inseparable  and  indistinguishable  concepts.  Such,  at 
least,  is  the  consequence  of  the  theorizing  in  his  earlier 
chapters.  The  author  would  not  be  Rousseau,  how- 
ever, if  he  did  not  later  revert  from  time  to  time  to  the 
idea  of  a  preeminent  excellence  in  the  non-political 
condition;  and  the  typical  climax  of  his  method  is 
to  be  seen  m  a  rapturous  glorification,  at  one  point, 
of  the  political  as  compared  with  the  natural  state. ^ 

The  device  that  he  hit  upon  for  solving  the  problem 
of  his  work  was  the  social  pact.  Authority  of  man 
over  man  can  have  no  rational  basis,  he  holds,  save 
agreement  and  consent.  And  there  is  but  one  species 
of  agreement  conceivable  in  which  liberty  is  retained 
while  authority  is  instituted.     This  single  species  is    i 


the  pact  through  which  a  multitude  of  individuals 
become  a  collective  imity  —  a  society.  Rousseau's 
thought  here  shows  the  very  strong  influence  of  both 

^ " .  .  .  ses  faeultes  s'exereent  et  se  developpent,  ses  idees 
s'etendent,  ses  sentiments  s'ennoblissent,  son  ame  tout  entiere 
s'eleve  a  tel  point  que,  si  les  abus  de  cette  nouvelle  condition  ne  le 
degradaient  sou  vent  au-dessous  de  celle  dont  il  est  sorti,  il  devrait 
benir  sans  cesse  I'instant  heureux  qui  Ten  arracha  pour  jamais, 
et  qui,  d'un  animal,  stupide  et  borne,  fit  un  etre  intelligent  et  un 
homme."  Contrat  Social,  I,  viii. 
c 


18  POLITICAL  THEORIES 

Hobbes  and  Locke.  It  is  the  latter,  however,  whom  he 
follows  to  the  end  —  and  beyond.  From  the  ingenious 
reasoning  by  which  Hobbes  made  absolute  monarchy 
a  logical  corollary  of  the  social  pact,  Rousseau  turns 
with  strong  denunciation.  But  the  Hobbesian  pre- 
cision in  defining  the  terms  of  the  pact  obviously  ap- 
pealed to  him,  and  his  own  treatment  of  the  subject 
is  but  the  substance  of  Locke  developed  by  the  method 
of  Hobbes. 

The  formula  on  which  civil  society  rests  is,  according 
to  Rousseau,  this :  "Each  of  us  puts  into  a  single  mass 
{met  en  commun)  his  person  and  all  his  power  under 
the  supreme  direction  of  the  general  will;  and  we 
receive  as  a  body  each  member  as  an  indivisible  part 
of  the  whole."  ^  Through  the  act  of  a  group  of  in- 
dividuals in  pronouncing,  tacitly  or  expressly,  to- 
gether or  in  succession,  this  formula  a  moral  body  is 
constituted,  with  an  identity,  a  life  and  a  will  of  its 
own  distinct  from  those  of  any  of  its  component  mem- 
bers. It  is  a  public  person  —  a  body  politic.  From 
various  points  of  view  it  is  known  as  state,  sovereign, 
power;  and  in  the  same  way  its  members  are  known 
variously  as  the  people,  citizens,  subjects.^ 

Rousseau's  exposition  of  the  spirit  and  effects  of 
his  contract  is  an  amazing  medley  of  bad  logic  and 
utter  puerility.  Equality,  he  declares,  is  insured,  be- 
cause each  individual  makes  complete  alienation  of 
himself  and  all  his  rights  to  the  community.  That 
is  to  say,  the  individuals,  reducing  themselves  to  zeros, 
are  as  such  equal.    By  the  same  reasoning  the  union 

*  Control  Social,  I,  vi.  ^  Ibid. 


ROUSSEAU'S  FALLACIOUS  LIBERTY  19 

is,  he  explains,  absolutely  perfect,  and  no  individual 
can  claim  anything.  This  would  seem  to  mean  as 
thorough  submergence  of  the  individual  in  the  state 
as  Plato  ever  conceived.  But  Rousseau  finds  the 
fullest  liberty.  For,  he  continues,  "since  each  gives 
himself  up  to  all,  he  gives  himself  up  to  no  one ;  and 
as  there  is  acquired  over  every  associate  the  same  right 
that  is  given  up  by  himself,  there  is  gained  the  equiva- 
lent of  what  is  lost,  with  greater  power  to  preserve 
what  is  left."  ^ 

This  demonstration  of  liberty  contains  as  many 
fallacies  as  clauses,  and  finds  a  fitting  climax  in  the 
reference  to  "what  is  left"  to  the  individual  after 
the  pact,  following  repeated  declarations  that  the 
individual  by  the  pact  gives  up  everything.  It  is 
hardly  strange  that  controversy  has  continued  active 
as  to  whether  Rousseau  stood  for  absolute  sovereignty 
or  for  a  sphere  of  inalienable  rights  in  the  citizen.^ 
He  clearly  stood  for  both,  relying  upon  the  simple  de- 
vice of  maintaining  each  of  two  logical  contradictories.^ 

His  analysis  and  exposition  of  the  contract  are  of 
like  fabric.  By  the  terms  of  this  formula  the  act  of 
association  is  clearly  conceived  as  merely  the  ex- 
pression of  an  identical  purpose  by  each  of  a  group  of 
individuals.     The  purpose  is  to  recognize  henceforth 

^  ".  .  .  .  et  plus  de  force  pour  eonserver  ce  qu'on  a."    Ibid. 

*  Cf.  Political  Science  Quarterly,  XXII,  698. 

'  James  Russell  LoweU  never  more  conspicuously  nodded  than 
in  declaring  that  Rousseau  "could  not  fail  to  be  a  good  logician. 
He  had  the  fortitude  to  follow  his  logic  wherever  it  led  him." 
(Among  My  Books,  1882,  I,  340.)  Of  Rousseau's  fortitude  there 
can  be  no  doubt.  But  the  courage  of  his  readers  often  falters  when 
his  logic  leads  in  opposite  directions  at  the  same  time. 


20  POLITICAL  THEORIES 

a  social  or  general  authority  as  a  substitute  for  the 
varying  and  conflicting  authorities  of  the  individual 
wills.  Locke  and  Sydney,  and  others  who  set  forth 
this  same  idea,  did  not  undertake  to  analyze  it  into  the 
elements  and  categories  of  a  contract  in  private  law. 
Hobbes,  more  rigid  and  inexorable  in  his  method,  ap- 
plied the  conceptions  of  the  jurists  to  the  social  pact, 
and  showed  who  were  the  parties  to  it,  what  precise 
obligation  they  respectively  took  upon  themselves, 
and  what  penalty  was  incurred  when  the  obligation 
was  repudiated.^  Rousseau  seeks  to  imitate  the  method 
of  Hobbes ;  but  the  result  is  ridiculous.  The  parties 
to  the  pact  are  declared  to  be  on  the  one  side  the  in- 
dividuals and  on  the  other  the  community,^  and  this 
though  the  community  comes  into  existence  only  by 
virtue  of  the  pact.  The  engagement  made  by  the 
community  appears  at  once,  however,  to  be  made  in 
reality  by  the  individuals.  For,  "each  individual 
contracting,  so  to  speak,  with  himself,  finds  himself 
engaged  under  a  double  relation,  namely,  as  member 
of  the  sovereign  toward  the  individuals,  and  as  member 
of  the  state  toward  the  sovereign."  And  Rousseau, 
after  this  sapient  exposition,  proceeds  gravely  to  ex- 
plain that  there  is  no  real  opening  here  to  apply  the 
principle  of  the  civil  law  according  to  which  no  one  is 
bound  by  engagements  made  with  himself ;  "for  to  be 
bound  to  one's  self  and  to  be  bound  to  a  whole  of  which 
one  forms  a  part,  are  very  different  things."  ^ 

^  Political  Theories  from  Luther  to  Montesquieu,  p.  278. 
2  " .  .  .  I'aote  d'association  renferme  un  engagement  reoiproque 
du  public  avec  les  particuliers."     Contrat  Social,  I,  vii. 
*  Ibid.,  I,  vii. 


INDIVIDUAL  AND   SOCIETY  21 

If  Rousseau  could  have  remained  certainly  faithful 
through  a  whole  section  of  his  work  to  the  truth  em- 
bodied in  this  last  sentence,  his  theory  of  the  state 
would  have  been  important.  But  his  grasp  on  the 
distinction  between  the  collective  and  the  distributive 
aspect  of  an  aggregate  was  very  uncertain.  Nothing 
better  illustrates  this  fact  than  his  easy  assumption, 
noted  above,  that  a  promise  by  a  society  is  the  same  as 
a  promise  by  each  member  of  the  society.  The  same 
confusion  appears  again  and  again  in  his  treatise. 
He  glimpses  often  the  fruitful  concept  of  a  beneficent 
and  all-determining  force  in  the  social  organism ;  but 
he  lacks  the  dialectic  power  to  disentangle  it  from  the 
mass  of  individualistic  prejudice  that  obscures  it.  He 
is  nearest  success  in  the  attempt  in  his  detailed  dis- 
cussion of  the  notion  of  sovereignty. 


4.  Sovereignty  and  Law 

Rousseau's  doctrine  on  this  subject  combined  ele- 
ments that  had  previously  been  considered  incompatible 
with  each  other.  The  definition  and  development  of 
sovereignty,  as  a  concept  of  political  science,  had 
been  almost  entirely  the  work  of  those  who,  like  Bodin 
and  Hobbes,  were  defending  absolute  monarchy.  By 
the  liberalizing  school  of  Locke  and  Montesquieu  the 
idea  of  sovereignty  was  evaded  as  unnecessary  in 
theory  and  dangerous  in  practice  —  a  mortal  foe  to 
liberty.  Rousseau,  with  characteristic  boldness,  pro- 
ceeded to  reconcile  the  absolutist  with  the  liberal  doc- 
trine.    He  defined  sovereignty  with  the  fulness  and 


22  POLITICAL  THEORIES 

precision  of  Hobbes,  and  gave  it  an  abode  and  an  opera- 
tion that  satisfied  the  feeling  of  Locke. 

The  social  contract,  Rousseau  maintains,  furnishes 
the  solution  of  all  questions  about  sovereignty.  The 
body  politic  that  is  created  by  this  contract  is  itself 
the  only  conceivable  possessor  of  supreme  power.^ 
By  the  free  act  of  those  who  enter  into  the  pact  all 
their  rights  and  powers  are  resigned  to  the  community, 
and  their  respective  wills  are  merged  into  and  super- 
seded by  the  general  will  (volonte  generale).  By  no 
possible  process  of  reasoning  or  of  fact,  Rousseau  holds, 
can  sovereignty  be  traced  to  any  other  possessor  than 
the  body  politic  as  a  whole,  or  be  identified  in  any 
other  manifestation  than  that  of  the  general  will. 
He  seizes  with  especial  zest  the  idea  of  sovereignty  as 
will,  and  uses  it  in  many  fantastic  feats  of  pseudo- 
dialectic.  His  often  absurd  manipulation  does  not 
conceal,  however,  the  real  value  of  the  idea.  Hobbes 
had  already  exposed  many  of  its  possibilities  as  a 
clarifying  agency  in  political  speculation;  but  Rous- 
seau gave  the  great  impulse  to  that  particular  de- 
velopment which  has  centred  about  the  idea  of  the 
social  or  group  will. 

The  basis  of  will,  Rousseau  holds,  is  interest.  The 
individual  wills  always  what  is  for  his  interest.  His 
interests  conflict  at  many  points  with  the  interests  of 
others ;  but  at  some  point  the  interest  of  all  is  the  same. 
This  common  interest  is  what  makes  the  state  possible. 

1  Althusius  presented  a  doctrine  of  sovereignty  in  1610  that  was 
substantially  the  same  as  Rousseau's.  C/.  Political  Theories  from 
Luther  to  Montesquieu,  p.  63. 


SOVEREIGNTY   AND   LAW   AS   WILL  23 

The  general  will  is  but  the  expression  of  what  the  com- 
mon interest  requires.  The  two  ideas  are  inseparable 
in  thought  and  in  fact.  If  the  interests  of  the  indi- 
viduals composing  the  state  are  at  no  point  identical, 
a  general  will  is  inconceivable  and  society  cannot 
exist.  If  an  expression  of  will  does  not  correspond 
to  the  common  interest,  it  is  not  an  expression  of  the 
general  mil  and  it  lacks  the  quality  of  sovereignty. 
Only  an  act  of  the  general  will  is  properly  called 
law  {lot).  Perfect  generality  is  of  the  essence  of 
it.  Thus  law  can  have  no  other  source  than  the 
sovereign,  that  is,  the  community  as  a  body  politic. 
A  rule  or  command  prescribed  by  any  other 
authority  lacks  the  essential  quality  of  law;  and, 
conversely,  a  rule  or  command  emanating  formally 
from  the  sovereign  body  lacks  the  quality  of  law  if 
its  content  or  effect  touches  interests  that  are  not 
general. 

Sovereignty,  conceived  in  such  a  way,  is  readily 
proved  by  Rousseau  to  be  inalienable,  indivisible  and 
inerrant.  It  is  inalienable,  because  the  will  cannot 
be  bound  by  promises.  "The  sovereign  can  indeed 
say:  I  will  now  what  such-and-such  a  man  wills,  or 
at  least  what  he  says  he  wills ;  but  it  cannot  say : 
What  that  man  shall  will  to-morrow,  I  shall  still  will." 
It  can  say :  Wliat  that  man  shall  will,  I  will  do ;  but 
this  is  the  formula  of  slavery,  and  pledges  acts  not  con- 
formed to  the  interest  of  the  promisor.  Since  will  in 
any  true  sense  is  inseparable  from  interest,  the  servile 
formula  implies  the  dissolution  ipso  facto  of  the  body 
politic  that  enacts  it.     "The  instant  there  is  a  master, 


24  POLITICAL  THEORIES 

there  is  no  longer  a  sovereign."  ^  Such  is  the  argu- 
ment by  which  Rousseau  disposes  of  the  ancient  dogma 
that  the  people  may  transfer  sovereignty  to  a  prince. 

That  sovereignty  is  indivisible  is  equally  clear  to 
Rousseau. 

The  will  either  is  or  is  not  general,  is  that  of  the  whole 
people  or  that  of  part  of  the  people.  In  the  first  case  the 
expression  of  the  will  is  a  sovereign  act  and  makes  law ; 
in  the  second  case  it  is  merely  a  particular  will  or  an  act  of  the 
magistrate  —  at  most  a  decree.^ 

All  the  distinctions  so  much  debated  by  philosophers 
between  the  different  kinds  of  public  acts  are  un- 
warranted, Rousseau  holds,  so  far  as  they  imply 
a  division  of  sovereignty.  That  there  is  legislative 
power  and  executive  power;  that  taxation  and  ju- 
dicature and  the  affairs  of  war  and  peace  are  variously 
administered  —  affects  not  at  all  the  unity  of  the 
sovereign.  An  act  of  the  whole  people  for  the  whole 
people  is,  regardless  of  an}^  other  feature  of  the  act, 
a  manifestation  of  sovereignty. 

To  prove  that  the  sovereign  cannot  err  is  a  task  that 
evokes  the  best  effort  of  Rousseau  both  as  reasoner 
and  as  rhetorician.^  He  is  required  to  meet  the  familiar 
charge  that  a  democracy  is  peculiarly  apt  to  stray  from 
expediency  and  justice.  He  meets  it  ingeniously  if 
not  conclusively  thus : 

It  follows  from  the  foregoing  that  the  general  will  is  al- 
ways right  and  tends  always  to  the  public  advantage 
(utilite  publique) ;  but  it  does  not  follow  that  the  judgments 
(dilib&rations)  of  the  people  always  have  the  same  rectitude. 

»  Contrat  Social,  II,  i.  2  Ibid.,  II,  ii.  ^  Jiyid.,  II,  iii. 


INERRANCY  OF  THE  GENERAL  WILL     25 

A  man  always  wills  his  own  good,  but  he  does  not  always 
see  it ;  the  people  is  never  corrupted,  but  it  is  often  deceived, 
and  only  then  does  it  appear  to  will  what  is  wrong. 

Thus  the  virtue  of  the  sovereign  people  is  saved  at 
the  expense  of  its  inteUigence;  and  the  inerrancy  of 
the  general  will  is  established  by  the  simple  process 
of  ascribing  all  wrong-doing  to  some  other  source. 
It  is  indeed  not  hard  to  see  that  by  its  very  definition 
Rousseau's  sovereign  always  wills  the  public  good. 
Sovereignty  is  only  another  name  for  a  generalized 
collective  volition  of  that  content.  Difficulty  arises, 
however,  when  the  question  changes  from  the  ab- 
stract conception  of  sovereignty  to  its  concrete  mani- 
festation. Rousseau's  doctrine  implies  that  a  resolu- 
tion adopted  unanimously  by  a  community  is  not 
necessarily  an  expression  of  the  sovereign  will.  He 
distinguishes  the  general  will  from  the  will  of  all 
(volonte  de  tous).  This  latter  is  but  the  sum  of  all  the 
particular  volitions  of  the  individuals  about  their 
private  interests.  The  general  will  is  the  aggregate 
of  such  of  these  volitions  as  are  common  to  all  the  in- 
dividuals —  such  as  concern  interests  that  are  common 
to  all.  With  this  distinction  in  mind,  it  is  easy  to  see 
that  a  resolution  of  the  whole  people  lacks  the  quality 
of  sovereign  law  if  it  deals  with  any  matter  that  does 
not  involve  the  true  interest  of  every  citizen. 

One  important  source  of  the  mistakes  often  made  by 
the  people  is  to  be  found,  Rousseau  says,  in  the  partial 
societies,  or  parties,  that  spring  up  in  the  state.  When 
a  party  is  constituted,  a  new  coi-porate  interest  ap- 
pears, coming  between  the  individual  interest  and  the 


26  POLITICAL  THEORIES 

general  interest.  There  is  no  longer  possible  that 
comparison  of  individual  wills  through  which  alone 
the  general  will  is  determined.  Party  interest  inter- 
venes and  misleads  the  people,  with  the  result  that 
the  will  of  the  party  is  mistaken  for  that  of  the  sover- 
eign. Rousseau's  conclusion  is,  like  that  of  many 
earlier  thinkers,  that  if  parties  exist  at  all  in  a  state, 
there  should  be  many  of  them.  Where  two  great 
parties  divide  the  people,  the  will  of  one  or  the  other 
of  them  habitually  supersedes  the  general  will,  and  the 
state  ceases  in  fact  to  exist. 

Rousseau  is  at  some  pains  to  exhibit  the  limits  of 
sovereignty.^  They  are  manifest  chiefly,  we  have  just 
seen,  as  inamediate  inferences  from  the  definition  of 
the  term :  the  sovereign  cannot  do  what  is  not  for  the 
general  welfare,  and  cannot  intrude  therefore  into  the 
field  of  purely  individual  interest.  Is  there,  then,  a 
sphere  of  individual  rights  secure  against  invasion  by 
the  state?  In  answering  this  crucial  question  Rous- 
seau fairly  bristles  with  paradox  and  contradiction. 
He  declares  that  "as  nature  gives  to  every  man  an 
absolute  power  over  all  his  members,  the  social  pact 
gives  to  the  body  politic  absolute  power  over  all  its 
members."  This  proposition  is  followed  by  reference 
to  the  distinction  between  the  duties  of  the  individual 
as  a  subject  and  his  natural  right  as  man.  In  point- 
blank  contradiction  of  what  was  earlier  said  as  to  the 
terms  of  the  social  contract,  Rousseau  now  observes : 
"It  is  agreed  {on  convient)  that  what  each  alienates 
by  the  social  pact  is  only  that  part  of  his  power,  his 

1  Control  Social,  IV,  iv. 


LIMITS   OF  SOVEREIGNTY  27 

property  and  his  liberty  which  may  be  used  with  ad- 
vantage by  the  community."  This  clearly  points  to  a 
reserved  sphere  of  individual  rights.  But  the  next 
sentence  turns  the  tables  decisively  against  the  in- 
dividual :  "It  must  also  be  agreed  that  the  sovereign 
alone  is  judge  of  that  advantage." 

Formally,  thus,  there  are  no  limits  to  sovereign 
power.  Substantially,  however,  there  are,  Rousseau 
insists,  the  very  real  limits  inherent  in  the  nature  of 
sovereignty.  The  relation  of  the  individual  will  to 
the  general  will  insures  at  the  least  the  equality  of  all 
citizens  before  the  law,  and  the  rule  of  justice  and 
equity.  The  sovereign  community  is  limited  to  pre- 
scriptions that  are  for  general,  not  for  any  particular 
utility,  and  it  can  impose  no  burden  that  is  not  alike 
for  all.  Rousseau's  rhetoric  in  sustaining  these 
amiable  ideals  is  admirable;  but  his  reasoning,  while 
often  very  specious,  never  wholly  disguises  the 
vitiating  assumption  that  an  aggregate  cannot  pos- 
sess attributes  distinct  from  those  of  its  component 
parts. 

The  most  clear  and  self-consistent  feature  of  his 
speculation  on  this  general  subject  is  that  which  deals 
with  the  idea  of  law.  Even  on  this  point  his  pre- 
dilection for  contract  leads  him  into  some  cloudy 
quibblings  about  law  as  essentially  a  convention, 
to  which  the  parties  are  respectively  the  community 
and  its  individual  members.^  But  his  central  con- 
ception is  made  very  distinct  and  suggestive.  As  has 
been  stated  above,^  a  law  is  a  resolution  of  the  whole 

»  Contrat  Social,  II,  iv.  2  Ante,  p.  23. 


28  POLITICAL   THEORIES 

people  for  the  whole  people,  touching  a  matter  that 
concerns  all. 

The  law  regards  the  subjects  as  a  whole  and  actions  as 
abstract,  never  a  man  as  an  individual  nor  a  concrete  {par- 
ticuliere)  act.  Thus  the  law  can  determine  that  there  shall 
be  privileges,  but  it  cannot  give  them  to  anybody  by  name ; 
the  law  can  establish  a  classification  of  the  citizens  and  de- 
scribe the  qualifications  for  the  various  classes,  but  it  cannot 
assign  certain  men  to  specific  classes ;  it  can  establish  a 
royal  government  and  hereditary  succession,  but  it  cannot 
choose  a  king  nor  name  a  royal  family  .  .  } 

From  this  conception  of  law  Rousseau  concludes 
that 

it  is  no  longer  necessary  to  ask  whose  function  it  is  to  make 
laws,  since  they  are  acts  of  the  general  will ;  nor  whether  the 
prince  is  above  the  laws,  since  he  is  a  member  of  the  state ; 
nor  whether  the  law  can  be  unjust,  since  no  one  is  unjust  to 
himself;  nor  how  one  is  at  the  same  time  free  and  subject 
to  the  laws,  since  they  are  merely  registers  of  our  own  wills .^ 

No  state  is  legitimate,  according  to  Rousseau,  un- 
less it  is  iiiled  by  laws,  as  thus  defined;  and  every 
state  so  ruled,  whatever  the  form  of  its  government,  is 
a  republic.^  The  lucid  interval  in  which  he  sets  forth 
these  fresh  and  striking  conceptions  is  followed  at 
once  by  a  lapse  into  dreaming  and  rhetoric.  For  the 
practical  realization  of  the  republican  state,  as  he  has 
defined  it,  he  has  no  suggestion  save  recourse  to  a 
"legislator,"*  a  superhuman  or  divinely  inspired  be- 
ing, to  impose  upon  a  people  the  institutional  order 

1  Contrat  Social,  II,  vi.  ^  Ibid. 

'  "  J'appelle  done  republique  tout  fitat  regi  par  des  lois,  sous 
quelque  forme  d'administration  que  ce  puisse  etre."   Ibid. 
*  Contrat  Social,  II,  vii. 


STATE   NOT   GOVERNMENT  29 

that  they  are  not  qualified  to  discover  for  themselves  — 
to  enact  that  general  will  which  they  share  but  know 
not.  In  this  recurrence  to  a  useless  and  very  much 
shop-worn  device  of  political  theory/  Rousseau  ex- 
poses the  purely  idealizing  tendency  of  his  whole 
speculation.  His  brave  undertaking  to  show  the 
rational  conciliation  of  liberty  and  authority  ends  in  a 
trite  glorification  of  Numa,  Lycurgus  and  John  Calvin, 
with  a  few  practical  suggestions,  drawn  largely  from 
Montesquieu,  as  to  the  course  most  desirable  for  the 
next  "legislator"  that  may  descend  upon  mankind.^ 

5.   Government 

The  distinction  between  state  or  sovereign  and 
government  is  developed  by  Rousseau  with  the  ut- 
most exactness  and  consistency.^  While  "state"  de- 
notes the  community  as  a  whole,  created  by  the  social 
pact  and  manifestmg  itself  in  the  supreme  general  will, 
"government"  denotes  merely  the  individual  or  group 
of  individuals  that  is  designated  by  the  commmiity  to 
carry  into  effect  the  sovereign  will.  The  government 
is  created  not  by  any  contract  but  by  a  decree  of  the 
sovereign ;  and  its  function  is  in  no  sense  to  make,  but 

1  The  "legislator"  was  still  doing  hard  service  in  philosophy; 
so  sensible  and  practical  a  thinker  as  Montesquieu  used  him. 

2  Rousseau,  in  common  with  many  intelligent  contemporaries 
(notably  Frederick  the  Great),  was  much  impressed  by  the  political 
spirit  of  the  Corsicans,  then  just  freeing  themselves  from  Genoa. 
He  says  that  the  Corsicans  are  the  one  European  people  capable 
of  legislating  for  themselves,  and  expresses  a  presentiment  that 
"some  day  that  little  island  will  astonish  Europe."  {Contrat 
Social,  II,  X.)  Napoleon  Bonaparte  was  born  less  than  ten  years 
after  this  was  written. 

*  Contrat  Social,  III,  i. 


30  POLITICAL  THEORIES 

only  to  administer  law.  Government,  to  Rousseau, 
means  executive  power.  The  individuals  to  whom 
this  power  is  assigned  are  the  officers  or  the  agents  of 
the  sovereign.  Collectively  they  may  be  called 
"prince"  or  "magistracy."  Whatever  their  titles  — 
kings,  senators,  governors  —  their  function  and  their 
relation  to  the  sovereign  are  the  same.  Their  power 
is  merely  what  is  intrusted  to  them  by  their  superior, 
and  may  be  modified,  curtailed  or  entirely  withdrawn 
at  the  discretion  of  that  superior. 

This  doctrine  is  substantially  that  of  the  whole  anti- 
monarchic  philosophy  of  the  two  centuries  preceding 
Rousseau.  His  own  contribution  consists  not  in  any 
new  emphasis  on  the  subordination  of  the  prince  to 
the  people,  but  in  the  conclusions  derivable  from  his 
definition  of  the  people  as  sovereign.  He  indulges  in 
a  good  deal  of  superfluous  metaphysics  over  his  con- 
ception of  sovereignty  as  will,  aiming  apparently 
to  clear  up  problems  that  would  be  as  well  solved 
without  it.  Thus  he  sets  forth  with  great  gravity 
the  rather  distressing  condition  of  a  citizen  who  is  a 
member  of  the  government.^  Such  a  one  embodies 
three  distinct  wills :  first,  the  will  that  rests  upon  his 
interest  as  a  mere  private  individual ;  second,  the 
will  corresponding  to  the  corporate  interest  of  the 
magistracy ;  third,  the  will  of  the  community  as  a 
whole  —  the  sovereign  general  will.  "In  the  order 
of  nature"  these  wills  are  respectively  the  more  active 
as  they  are  the  more  concentrated :  that  is,  the  in- 
dividual will  prevails  over  the  general.    But  the  social 

*  Contrat  Social,  III,  ii. 


FORMS   OF  GOVERNMENT  31 

order  requires  the  domination  of  the  general  will. 
From  this  unfortunate  contradiction  Rousseau  draws 
various  inferences  about  the  relative  efficiency  and 
desirabiHty  of  different  governmental  arrangements  — 
inferences  that  coincide  with  the  commonplaces  of 
earlier  theory  and  observation.^ 

His  classification  of  governmental  forms  follows  the 
ancient  and  familiar  categories  —  monarchy,  aris- 
tocracy, democracy,  and  mixed.  Democracy  is  that 
in  which  the  sovereign  assembly  itself  exercises  the 
function  of  administrator.  Such  a  union  of  functions 
does  not  appeal  to  Rousseau  as  a  practicable  system 
save  possibly  in  a  small  and  simple  community. 
Sovereignty  is  necessarily  democratic,  in  the  most 
exclusive  sense,  in  his  theory,  but  democratic  govern- 
ment is  not  suited  to  mankind.^  Rousseau  expresses 
indeed  no  definite  judgment  as  to  what  form  of  govern- 
ment is  best.  He  follows  on  this  question  the  thought 
of  the  most  judicious  of  his  predecessors,  and  finds  that 
each  form  may  be  peculiarly  adapted  to  some  par- 
ticular set  of  conditions.^  His  discussion  of  the  sub- 
ject manifests  a  creditable  knowledge  and  appreciation 
of  the  work  of  Montesquieu,  in  emphasizing  the  effect 
of  varieties  in  economic  and  social  conditions.  But 
while  the  question  as  to  what  government  is  abso- 
lutely the  best  defies  a  categorical  answer,  Rousseau 

*  E.g.,  that  monarohio  government  is  more  energetic  than  that 
of  an  assembly. 

2  "S'il  y  avait  un  peuple  de  dieux,  il  se  gouvernerait  demoora- 
tiquement.  Un  gouvernement  si  parfait  ne  oonvient  pas  a  des 
hommes."     Contrat  Social,  III,  iv,  end. 

» Ibid.,  Ill,  viii. 


32  POLITICAL  THEORIES 

finds  a  single  simple  and  conclusive  test  by  which  to 
determine  whether  a  given  nation  is  well  or  ill  governed. 
This  is  the  census. 

Other  things  being  equal,  that  government  is  infallibly  the 
better  under  which,  without  extraneous  measures,  without 
naturalization,  without  colonies,  the  citizens  show  the  greater 
increase  in  numbers.  That  under  which  a  people  is  decreas- 
ing and  dying  out  is  the  worst.  Statisticians,  the  matter  is 
in  your  hands  :  count,  measure,  compare.^ 

Both  the  establishment  and  the  extinction  of  govern- 
ments subject  Rousseau's  principles  to  rather  severe 
tests ;  but  his  assurance  carries  him  over  the  gaps 
that  his  reasoning  fails  to  bridge.  To  set  a  govern- 
ment in  operation  would  seem  to  be  impossible  under 
the  conceptions  of  sovereignty  and  law  that  he  so  care- 
fully defines ;  for  w^hile  the  sovereign  may  declare 
what  the  form  of  government  shall  be  —  a  general  act 
and  hence  appropriate  to  the  sovereign,  it  cannot  name 
the  persons  who  are  to  man  the  offices,  since  that, 
Rousseau  explicitly  declares,  is  a  particular  act,  wholly 
beyond  the  competence  of  the  general  will.  Naming 
the  magistrates  is  distinctively  an  act  of  government, 
not  of  sovereignty ;  and  there  is  a  difficulty,  as  Rous- 
seau justly  remarks,  in  understanding  how  there  can 
be  an  act  of  government  before  the  government  comes 

*  Contrat  Social,  III,  ix.  In  an  interesting  note  at  the  end  of  this 
chapter,  Rousseau  develops  the  idea  that  neither  general  tran- 
quillity nor  a  high  state  of  intellectual  and  artistic  culture  is  to  be 
taken  as  a  sign  of  good  government.  "Un  peu  d'agitation  donne 
du  ressort  aux  ames,  et  ce  qui  fait  vraiment  prosperer  I'espece  est 
moins  la  paix  que  la  liberte."  Which  suggests  the  sapient  observa- 
tion of  Thomas  Jefferson,  that  a  little  revolution  about  once  in 
twenty  years  is  a  good  thing. 


PEOPLE  CREATE  GOVERNMENT        33 

into  existence.^  To  one  who  has  achieved  the  dehcate 
feat  of  creating  a  state  by  a  contract  to  which  the  state 
itself  is  one  of  the  parties,^  this  later  problem  proves  a 
matter,  however,  of  no  real  concern.  We  perceive  here, 
Rousseau  says,  "one  of  those  astonishing  properties 
of  the  body  politic  by  which  it  reconciles  operations 
that  appear  wholly  contradictory."  There  takes  place 
a  sudden  conversion  of  the  sovereignty  into  govern- 
ment, so  that  with  no  perceptible  change  and  merely 
by  a  new  relation  of  all  to  all,  the  citizens,  becoming 
magistrates,  pass  from  general  acts  to  particular  acts, 
and  from  the  law  to  its  execution.  That  is  to  say,  the 
sovereign  people,  assembled  to  institute  a  government, 
vote  that  a  certain  form  shall  be  established,  and  vote 
that  certain  men  shall  fill  the  offices  thus  created. 
The  first  vote  expresses  the  general  will  and  is  in  the 
strictest  sense  law;  the  second  vote  is  not  an  ex- 
pression of  the  general  will,  and  is  not  law,  but  a  mere 
governmental  decree.  Between  the  two  votes  the 
assembly  changes  its  character,  just  as  a  parliamentary 
body  changes  its  character  when  it  goes  into  com- 
mittee of  the  whole.^  The  people  act  in  one  instance 
as  sovereign  and  in  the  other  as  a  democratic  govern- 
ment. Since  the  process  here  described  is  inevitable 
in  the  establishment  of  monarchy,  aristocracy  and  all 
other  forms,  it  follows  that,  in  Rousseau's  thought, 
every  government  must  be  considered  as  originating 
in  democracy. 

*  Contrat  Social,  III,  xvii,  2  Ante,  p.  20. 

*  Rousseau  refers  to  the  House  of  Commons  going  into  "  grand 
committee." 


34  POLITICAL  THEORIES 

Such  being  the  method  by  which  the  inception  of 
government  is  reconciled  with  Rousseau's  first  prin- 
ciples; let  us  examine  their  bearing  on  its  normal  opera- 
tion. Law-making,  in  the  strict  sense,  is  of  course  a 
function  not  of  the  government  but  of  the  sovereign. 
It  can  be  performed  only  by  an  assembly  of  the  whole 
people.  Representation  is  wholly  out  of  the  ques- 
tion in  this  matter.  The  general  will  can  no  more  be 
represented  than  it  can  be  alienated.  The  vaunted 
modem  device  of  representative  assemblies  Rousseau 
regards  as  but  an  evidence  of  political  decay.  "  Be- 
cause of  indolence  and  wealth  they  at  last  have  soldiers 
to  enslave  the  country  and  representatives  to  sell  it."  ^ 
Deputies  may  be  chosen  by  the  people  for  the  despatch 
of  certain  duties ;  but  they  are  merely  agents,  and  have 
no  final  authority.  "The  English  people  thinks  itself 
free ;  but  it  is  greatly  mistaken  ;  it  is  free  only  during 
the  elections  for  members  of  Parliament;  so  soon  as 
they  are  elected  the  people  is  enslaved  and  becomes  a 
zero."  Whatever  may  be  the  inconvenience  in  large 
states,  the  whole  people  must  be  looked  to  as  the  sole 
legislator. 

The  question  at  once  presents  itself :  shall  the  voice 
of  the  majority  prevail  as  the  general  will?  If  so, 
how  shall  it  appear  that  the  minority,  constrained  by 
superior  numbers,  follows  its  own  will  and  is  free? 
Rousseau  answers :  only  one  political  act  requires 
unanimity,  and  that  is  the  social  pact.^  No  one  is 
a  member  of  the  commmiity  except  in  consequence 
of  his  own  deliberate  volition.  Within  the  state  once 
»  Contrat  Social,  III,  xv.  « Ibid.,  IV,  ii. 


MAJORITY   EXPRESSES   GENERAL  WILL  35 

formed  both  sovereign  and  governmental  acts  are 
determined  by  the  majority.  That  the  minority  seems 
no  longer  free,  because  subject  to  laws  to  which  they 
have  not  given  their  consent,  is  an  illusion,  due  to  a 
wrong  way  of  looking  at  the  question.  "When  a  proj- 
ect of  law  is  laid  before  the  assembly  of  the  people, 
they  are  asked,  not  whether  they  approve  or  reject  it, 
but  whether  it  is  or  is  not  conformed  to  the  general 
will.  The  vote  of  each  is  merely  his  opinion  on  that 
question:  "When,  therefore,  the  opinion  contrary  to 
mine  prevails,  it  is  merely  proved  that  I  was  mistaken, 
and  that  the  general  will  was  not  what  I  thought  it 
was.  If  my  opinion  had  prevailed,  I  should  have  done 
what  I  did  not  will ;  then  indeed  I  should  not  have 
been  free."  ^ 

Such  is  the  burlesque  of  reasoning  by  which  Rousseau 
seems  to  think  that  he  actually  clears  up  one  of  the 
most  troublesome  difficulties  in  ultimate  political 
theory.  A  deliberation  of  the  sovereign  people  ap- 
pears as  a  guessing  match  and  the  law  by  which  men 
are  free  is  fixed  by  a  majority  of  guesses.  The  citizen 
who  is  in  the  minority  is  not  a  slave  but  only  a  poor 
guesser.  Rousseau  characteristically  follows  this  word- 
juggling  with  a  frank  admission  that  he  has  begged 
the  question  at  issue :  "  This  assumes,  it  is  true,  that 
all  the  elements  of  the  general  will  are  in  the  majority ; 
when  they  cease  to  be  there,  whichever  side  prevails, 
there  is  no  longer  any  liberty."  ^ 

The  decline  and  death  of  the  body  politic  are  in- 
evitable,  Rousseau   holds,^   and  his   analysis   of  the 

1  Contrat  Social,  IV,  ii.  « Ibid.  »  Ibid.,  Ill,  x,  xi. 


36  POLITICAL  THEORIES 

causes  turns  still  on  his  doctrine  of  will.  The  govern- 
ment tends  incessantly  to  invade  the  sphere  of  sov- 
ereignty ;  that  is,  to  substitute  the  will  of  the  magis- 
trates for  the  general  will.  The  greater  intensity  of 
volition  in  the  smaller  body  accounts  for  this.  At 
the  same  time  there  is  a  ceaseless  tendency  of  govern- 
ment to  contract  itself  from  democracy  to  aristocracy 
and  thence  to  monarchy  —  and  thus  to  increase  the 
intensity  of  its  volitions,  as  compared  with  those  of 
the  growing  community.  Only  in  small  nations,  amid 
simple  conditions,  does  the  general  will  have  any 
assured  operation.  As  a  society  grows  and  conditions 
become  complex,  not  only  the  government,  but  also 
the  numerous  rival  groups  of  private  citizens  strive  to 
advance  their  special  interests  instead  of  the  public 
advantage,  and  to  substitute  a  particular  for  the 
general  vdW.  Because  ci\dlization,  however  deplorable, 
is  inevitable,  this  process  is  certain.  "The  body 
politic,  as  well  as  the  human  body,  begins  to  die  at  its 
birth  and  carries  within  itself  the  causes  of  its  de- 
struction." ^ 

Something  indeed  may  be  done  to  retard  decay  and 
to  preserve  as  long  as  possible  liberty,  equality  and 
legitimate  authority.  Rousseau  prides  himself,  and 
with  some  justification,  on  his  suggestions  in  this 
respect.^  They  concern  only  the  usurpatory  tendency 
of  the  government ;  the  vices  of  human  nature  that 
bring  the  other  evils  are  beyond  correction  by  political 

1  Contrat  Social,  III,  xi. 

*  Ibid,  III,  xii,  xviii.  "II  est  bien  singulier  qu'avant  le  Contrat 
Social,  ou  je  le  donne,  personne  ne  s'en  fut  avise."  Gouvernement  de 
Pologne,  ch.  viii. 


CHANGES   IN   GOVERNMENT  37 

devices.  There  must  be,  he  says,  periodical  assembHes 
of  the  sovereign  people,  for  the  purpose  of  maintaining 
the  social  pact.  The  meetings  must  be  spontaneous  — 
wholly  independent  of  the  government  in  sunamons  and 
action.  To  the  people  thus  assembled,  two  questions 
must  be  submitted:  "First,  is  it  the  pleasure  of  the 
sovereign  to  preserve  the  existing  form  of  government ; 
second,  is  it  the  pleasure  of  the  people  to  leave  the 
administration  to  those  who  at  present  have  it  in 
charge."  ^  So  long  as  a  free  expression  of  the  people's 
will  on  these  two  points  is  obtainable  at  regular  and 
not  too  long  intervals,  the  usurpations  of  the  govern- 
ment will  be  reduced  to  a  minimum.  As  an  additional 
guarantee  of  this  result  Rousseau  lays  down  the 
principle  that  when  the  sovereign  is  assembled  the 
functions  of  the  government  are  ipso  facto  suspended.^ 
The  great  political  objection  to  Rousseau's  scheme 
of  legislation  by  a  general  assembly  of  the  people  was, 
of  course,  the  apparent  impossibility  of  its  applica- 
tion to  large  states.  Rousseau  admitted  that  where 
population  was  great  and  the  territory  extensive,  there 
would  be  grave  inconvenience.  Not  for  a  moment 
on  that  account  would  he  concede  that  representatives 
should  be  allowed  to  constitute  the  legislature.  "  Where 
right  and  liberty  are  everything  inconveniences  are 
nothing."  ^    In  a  large  country  the  assemblies  could 

*  Contrat  Social,  III,  xviii. 

2  "  A  I'instant  que  le  peuple  est  legitimement  assemble  en  corps 
souverain,  toute  juridiction  du  gouvernement  eesse,  la  puissance 
executive  est  suspendue  .  .  .  parce  qu'oii  se  trouve  le  represents 
11  n'y  a  plus  de  representant."     Ibid.,  Ill,  xiv. 

3  Ibid.,  Ill,  XV. 


38  POLITICAL  THEORIES 

be  held  at  different  places  in  turn,  and  thus  distribute 
the  inconvenience  among  all  the  citizens  alike.  But 
at  all  hazards  the  principle  must  be  maintained 
that  eveiy  citizen  should  be  entitled  to  participate 
on  equal  terms  in  the  supreme  function  of  law- 
making. 

Despite  all  the  tiresome  metaphysics  with  which 
Rousseau  surrounds  his  device  for  maintaining  the 
state,  it  is  easy  to  see  that  he  foreshadows  two  very 
familiar  institutions  of  nineteenth-century  democracy, 
namely,  the  periodical  popular  vote  on  the  question 
of  revising  the  constitution  and  the  periodical  election 
of  officers.  Whether  Rousseau  would  approve  the 
manner  in  which  his  device  is  applied  in  many  states 
of  the  American  Union  may  be  doubtful ;  but  there  is 
no  room  to  doubt  that  the  spirit  of  our  constitutional 
provisions  is  very  closely  akin  to  the  spirit  in  which 
his  propositions  were  conceived. 

6.  Strength  and  Influence  of  Rousseau's  Work 

In  the  field  of  politics  Rousseau's  teaching  was 
suggestive  rather  than  conclusive;  but  the  stimulat- 
ing force  of  his  suggestions  long  remained  a  cardinal 
fact  of  literature  and  history.  His  fancies,  fallacies 
and  quibbles  often  appealed  more  strongly  than  the 
sober  observation  and  balanced  reasoning  of  Montes- 
quieu to  the  Zeitgeist  of  the  later  eighteenth  century. 
Both  the  pure  philosophy  of  politics  and  the  practical 
statesmanship  of  the  time  clearly  illustrate  this.  His 
spirit  and  his  dogmas,  however  disguised  and  trans- 
formed, are  seen  everywhere  both  in  the  speculative 


ROUSSEAU'S   CHIEF   SERVICE  39 

systems  and  in  the  governmental  reorganizations  of 
the  stirring  era  that  followed  his  death.^ 

On  the  side  of  pure  theory  the  most  distinctive  ser- 
vice of  Rousseau  was  that  due  to  his  doctrine  of  sov- 
ereignty.    The  common  interest  and  the  general  will 
assumed,  through  his  manipulation,  a  greater  definite- 
ness  and  importance  than   philosophy  had  hitherto 
ascribed  to  them.    They  became  the  central  features 
of  almost  every  theoiy  of  the  state.     Through  those 
concepts  a  way  was  opened  by  which  the  unity  and 
solidarity  of  a  population  became  the  necessary  pre- 
supposition of  scientific  politics.    Rousseau  thus  con- 
tributed largely  to  promote  the  theory  of  the  national 
state.    His  m.ain  purpose,  however,  was  apart  from 
this.     Consciously  he  aimed  only  to  devise  a  theory 
of  sovereignty  through  which  liberty  and  authority 
should    be    reconciled.     His    metaphysics    and    psy- 
chology, however  ingenious,  were  not,  as  we  have  seen, 
equal  to  the  task.    He  could  offer  no  self-consistent 
reasoning  by  which  it  should  appear  that  an  individual's 
will  was  certain  to  be  expressed  in  the  general  will, 
except  in  the  same  sense  in  which  the  uidividual's 
will  was  certain  to  be  expressed  in  the  will  of  a  monarch 
to  whom  he  had  submitted  himself.    Rousseau  failed, 
in  short,  to  prove  that  the  sovereignty  of  the  community 
was  any  more  compatible  with  individual  liberty  than 
the  sovereignty  of  a  monarch  or  an  oligarchy.     But 
his  earnest  and  confident  declamation  about  the  virtues 
of  the  general  will  and  the  significance  of  the  general 
interest  brought  those  concepts  into  the  foreground  of 
1  He  died  in  1778. 


40  POLITICAL  THEORIES 

political  theory  and  evoked  from  more  subtle  reasoners 
than  Rousseau  more  refined  and  self-consistent  solu- 
tions of  the  problem  he  propounded.  If  their  results 
were  ultimately  no  more  successful  than  his,  that  was 
due  rather  to  the  a  priori  conceptions  of  liberty  and 
authority  that  were  the  common  basis  of  this  whole 
school  of  speculation  than  to  any  flaw  in  the  logic  by 
which  the  deductions  from  these  conceptions  were 
made.  The  assumption  that  tme  and  perfect  liberty 
could  be  predicated  of  only  the  non-social  man,  was 
fatal  to  any  theory  of  political  authority.  Nothing 
could  come  out  of  this  assumption  save  the  empty 
paradoxes  of  Rousseau,  the  paralyzing  transcendental- 
ism of  Kant,  Fichte  and  Hegel,  Rousseau's  legitimate 
successors,  or  anarchy  pure  and  simple.  Making  a 
state  out  of  a  group  of  perfectly  free  and  independent 
individuals  is  like  making  a  statue  out  of  a  heap  of 
sand :  some  cohesive  principle  is  necessary  that  it  is 
beyond  the  art  of  the  "legislator"  or  the  sculptor  to 
supply.^  Aristotle  furnished  such  a  principle  in  his 
dictum  that  the  social  and  political  element  is  as  strong 
and  fundamental  as  the  individuaHstic  in  man  — 
that  dependence  on  his  kind  is  to  be  presumed  of  the 
normal  human  being.  But  in  the  eighteenth  century 
the  Aristotelian  way  of  approaching  politics  made  small 
appeal  to  intellectual  men,  and  least  of  all  to  Rousseau. 
Where  Rousseau's  theorizing  touched  government 
in  its  more  practical  aspects,  his  ideas  were  in  some 

1  "  Eine  Summe  von  Individuen  ist  niemals  und  kann  gar  nieht 
eine  Einheit  sein,  so  wenig  als  aus  dem  Haufen  Sandkorner  eine 
Statue  wird."  Bluntsehli,  Geschichte  der  neueren  Staatsvnssenschaft, 
3te  Aufl.,  348. 


ROUSSEAU'S   CONCEPTION   OF   LAW  41 

cases  singularly  fruitful.  His  shaip  distinction  be- 
tween the  sovereign  and  the  government  was  chiefly 
responsible  for  this.  He  has  been  criticised  for  his 
doctrine  that  only  the  sovereign  can  make  law.  But 
his  theory  here  was  perfectly  self-consistent,  and  it 
moreover  proved  adaptable  to  the  explanation  of  cer- 
tain concrete  institutions  of  a  novel  kind  that  soon 
after  Rousseau's  death  became  the  subject  of  knowledge 
and  interest  to  intellectual  men  in  France.  Law  (loi) 
in  Rousseau's  thought  was  a  term  that  could  designate 
properly  only  a  rule  of  perfect  generality  both  in 
content  and  in  application.  Such  being  the  case,  his 
sovereign  community  was  logically  the  only  law-maker. 
The  enactments  of  any  so-called  legislature  that  formed 
a  part  of  the  government  could  have  only  the  character 
of  decrees  for  carrying  into  effect  the  superior  mandates 
of  the  true  legislature.  Rousseau's  requirements  for 
law  in  the  strict  sense  were,  we  have  seen,  very  exact- 
ing. The  assignment  of  a  citizen  to  an  office,  or  the 
assessment  of  a  tax  upon  specific  citizens  could  not  be 
effected,  he  held,  by  law ;  for  such  acts  were  not  gen- 
eral but  particular  in  their  application,  and  hence  in- 
volved not  the  general,  but  some  particular  interest. 
It  is  hard  to  accept  Rousseau's  reasoning  in  this  de- 
tail ;  for  he  holds  that  the  filling  of  an  office  must  be 
treated  as  a  matter  rather  of  private  than  of  public 
concern,  and  this  is  scarcely  a  tenable  proposition. 
But  apart  from  this  minor  point  it  is  easy  to  see  that 
Rousseau's  "law"  is  substantially  what  came  to  be 
called  fundamental  law  or  constitution.  Thus  con- 
ceived, his  doctrine  of  law-making  is  merely  that  now 


42  POLITICAL  THEORIES 

familiar  dogma  of  political  science,  that  the  constitution 
is  made  by  the  sovereign  people,  and  the  government 
must  conform  its  acts  to  this  supreme  law. 

During  the  decade  succeeding  the  death  of  Rousseau 
the  interest  of  Frenchmen  became  by  the  course  of 
events  deeply  enlisted  in  the  affairs  and  institutions 
of  the  American  states  just  freed  from  Great  Britain. 
The  political  systems  of  these  states  presented  in  con- 
crete realization  principles  of  sovereignty  and  law  that 
strongly  suggested  the  doctrine  in  the  Contrat  Social. 
The  formal  written  constitutions  in  which  the  organi- 
zation and  action  of  government  were  prescribed 
satisfied  very  well  the  requirements  that  Rousseau  laid 
down  for  law  in  the  strict  sense.  They  were  on  their 
face  the  expression  of  the  people's  will;  they  dealt 
with  only  the  fundamental  questions  of  the  political 
order;  and  they  were  clearly  distinguished,  both  by 
their  formal  source  and  by  their  superior  authority, 
from  the  mandates  of  the  governments  that  they  set 
up.  Through  these  constitutions,  thus,  the  sovereignty 
of  the  people  and  its  relation  to  government  were 
exemplified  in  actual  institutions  on  lines  that  ran 
closely  parallel  to  Rousseau's  theory.  This  coincidence, 
fortuitous  though  it  was,^  did  not  fail  of  far-reaching 
influence  on  theory  and  on  practice  in  the  revolutionary 
movement  that  was  impending. 

We  have  now  completed  the  tale  of  political  doctrines 
put  forth  by  Rousseau  that  were  in  any  large  measure 

*  A  trace  of  common  lineage  may  be  discerned  in  the  indebted- 
ness of  both  Rousseau  and  the  Americans  to  the  theories  and  in- 
stitutions of  seventeenth-century  England. 


A   CIVIL  RELIGION  43 

both  original  and  important.  His  prolific  literary 
genius  gave  great  vogue  and  fleeting  influence  to 
various  dogmas  that  lacked  one  or  both  of  these 
quahties.  A  pretentious  theory  of  a  civil  religion  ^ 
formulated  the  creed  to  which  every  citizen  must  sub- 
scribe in  order  to  escape  banishment  from  the  state. 
The  articles,  fixed  by  the  sovereign  "not  exactly  as 
dogmas  of  religion  but  as  sentiments  of  sociability 
without  which  it  is  impossible  to  be  a  good  citizen  or  a 
faithful  subject,"  declared  belief  in  God,  in  a  future 
life  of  happiness  for  the  good  and  punishment  for  the 
wicked,  in  the  sanctity  of  the  social  contract  and  the 
laws,  and  in  no  toleration  for  intolerance.  This  creed, 
with  its  characteristic  concluding  paradox,  is  but 
Rousseau's  adaptation  of  a  device  that  had  been  more 
soundly  if  less  flashily  exploited  by  Spinoza^  and 
others.  None  of  his  predecessors,  however,  had  ven- 
tured to  denounce  the  Catholics  as  incapacitated  by 
their  purely  religious  belief  for  good  citizenship  — 
and  this  in  a  plea  for  toleration.^ 

Besides  this  and  other  excursions  into  the  theologico- 
poHtical  field,  which  always  had  a  great  attraction  for 
him,  Rousseau  delivered  many  resounding  judgments 
on  the  economic  and  fiscal  problems  that  were  upper- 
most in  the  political  discussion  of  his  day.  Most  of 
what  was  theoretically  significant  in  his  views  was 
taken  bodily  from  Montesquieu,  and  derived  no  force 

*  Contrat  Social,  IV,  viii,  "De  la  religion  civile." 

2  Tract.  Theol.  Polit.,  xx,  21 ;    Cf.  Political  Theories  from  Luther 
to  Montesquieu,  315. 

*  " .  .  .  quiconque  ose  dire :    *Hors  de  I'Eglise  point  de  salut,' 
doit  §tre  chasse  de  I'Etat.  .  .  ."  Contrat  Social,  IV,  viii. 


44  POLITICAL  THEORIES 

from  Rousseau's  adaptation.^  It  was  for  other  think- 
ers, already  making  themselves  felt  when  the  Contrat 
Social  was  written,  to  develop  an  effective  doctrine 
on  these  topics.  The  Physiocrats,  in  this  economic 
field,  a  notable  group  of  theorists  in  moral  and  po- 
litical science  proper,  and  a  multitude  of  seekers  after 
practical  reform  in  the  French  government,  filled  France 
with  earnest  debate,  growing  hot  and  fierce  as  the 
cataclysm  of  1789  approached.  In  none  of  these 
classes  was  Rousseau's  political  theory  accepted  in  its 
entirety.  In  all  of  them,  however,  his  dogmas  and  his 
phrases  were  in  some  measure  current  coin,  and  in  all 
was  manifested  the  confidence  so  eloquently  preached 
by  him,  that  the  way  to  human  welfare  could  always 
be  easily  found  by  getting  back  to  nature. 

SELECT  REFERENCES 

Atger,  Essai  sur  I'histoire  du  contrat  social,  pp.  253-304.  Bosan- 
quet,  Philosophical  Theory  of  the  State,  pp.  11-16,  79-117. 
Bluntschli,  Geschichte,  pp.  334-362.  Caird,  Essays  on  Literature 
and  Philosophy,  I,  pp.  105-146.  Dreyfus-Brissac,  Du  Contrat 
Social,  especially  Introduction.  Franck,  Reformateurs  et  Publidstes, 
dix-huilibme  siecle,  pp.  285-379.  Janet,  Histoire,  II,  pp.  415-477. 
Lincoln,  "Rousseau  and  the  French  Revolution,"  in  Annals  of  the 
American  Academy  of  Social  and  Political  Science,  Vol.  X,  pp. 
54-72.  Lowell,  "  Rousseau  and  the  Sentimentalists,"  in  Among 
my  Books  (1870),  Vol.  I.  Morley,  Rousseau,  especially  Vol.  I, 
chap.  V,  and  Vol.  II,  chaps,  iii  and  iv;  "Rousseau's  Influence  on 
European  Thought,"  in  Fortnightly  Review,  1872.  Rousseau,  The 
Social  Contract,  translated  by  Tozer. 

»  E.g.,  Contrat  Social,  III,  viii. 


CHAPTER  II 

THE  KISE   OF   ECONOMIC   AND   JURISTIC   SCIENCE 

1.  European  Politics  and  World  Politics 

The  year  in  which  Rousseau's  Social  Contract  was 
pubHshed,  1762,  saw  the  practical  end  of  the  world- 
wide conflict  known  as  the  Seven  Years'  War.  Three 
of  the  most  conspicuous  results  of  this  desperate  and 
protracted  struggle  were  (1)  the  definite  consolidation 
of  the  Prussian  monarchy  under  Frederick  the  Great, 
(2)  the  deep  humiliation  and  exhaustion  of  France, 
and  (3)  the  enormous  expansion  of  Great  Britain's 
colonial  empire.  Each  of  these  facts  had  a  close  re- 
lation to  the  salient  features  of  the  history  of  political 
philosophy  during  the  next  three  decades.  Frederick 
the  Great,  feared  and  hated  by  all  his  brother  mon- 
archs,  furnished  them,  nevertheless,  with  the  type  and 
example  of  that  enlightened  despotism  in  which  con- 
temporary speculation  found  so  much  to  approve  and 
admire.  Humbled  and  exhausted  France,  seeking  and 
in  some  measure  gaining  revenge  upon  her  ruthless 
despoiler,  became  at  the  same  time  more  and  more 
involved  in  economic  and  social  troubles ;  and  out  of 
her  necessities  arose  the  philosophy  that  led  straight 
to  revolution.  Finally  Great  Britain,  undertaking  to 
administer  imperially  her  imperial  dominion,  alienated 

45 


46  POLITICAL  THEORIES 

the  Americans,  who  in  proclaiming  and  estabhshing 
their  independence,  exhibited  to  the  world  for  the 
first  time  in  history  the  theoiy  and  practice  of  a  demo- 
cratic state  under  a  written  constitution. 

The  various  phases  of  practical  politics  in  Europe 
during  this  period  were  accompanied  by  a  very  great 
activity  in  theory.  France  was  the  centre  of  the 
literary  speculation,  but  all  Western  Europe,  from 
Italy  to  Scotland,  contributed  to  the  movement.  In 
a  general  way  the  political  philosophy  of  the  time  may 
be  divided  into  two  classes  :  first,  that  which  was  con- 
cerned primarily  with  problems  of  amelioration  in 
the  social,  economic  and  administrative  activities  of 
governments ;  second,  that  which  dealt  with  the  more 
strictly  political  problems  touching  the  form,  organi- 
zation and  limits  of  governmental  authority  itself. 
Both  species  of  speculation  manifested  the  character- 
istic optimism  of  eighteenth-century  philosophy.  Both 
manifested  for  the  most  part  an  abiding  confidence 
that  a  sure  remedy  for  any  social  or  political  ill  lay 
close  at  hand  in  "nature,"  awaiting  the  grasp  of  human 
reason,  and  that  the  ultimate  principles  governing 
any  group  of  human  phenomena  could  be  readily  cast 
into  precise  and  absolutely  conclusive  formulas.  Thus 
the  Physiocrats  furnished  an  enchantingly  easy  and 
simple  solution  for  vexatious  problems  of  finance  and 
industry;  the  moral  and  legal  philosophers  resolved 
with  a  sentence  the  world-old  obscurities  in  the  con- 
ceptions of  liberty  and  law. 

The  decades  that  we  are  considering  were  signalized 
In  practical  politics  by  the  remarkable  group  of  con- 


ERA   OP  ENLIGHTENED   DESPOTS  47 

temporary  monarchs  known  as  the  "enlightened 
despots."  Frederick  the  Great  of  Prussia  (1740-86) 
was  easily  the  chief  of  this  distinguished  collection, 
and  his  example  notoriously  inspired  the  policies  of 
others,  like  Catherine  II  of  Russia  (1762-96)  and  the 
Emperor  Joseph  II  (1765-90),  In  international  and 
dynastic  affairs  these  rulers  were  far  more  despotic 
than  in  any  modern  sense  enlightened.  Where  oppor- 
tunity was  presented  to  strengthen  his  own  position 
or  weaken  that  of  a  rival  none  of  these  monarchs  felt 
restrained  by  respect  for  God  or  man.  The  adepts  of 
the  law  of  nature  and  of  nations  strove  with  pathetic 
patience  to  discover  in  the  practice  of  the  eighteenth 
century  any  of  the  noble  principles  that  were  sup- 
posed to  lie  at  the  basis  of  their  science.  It  was 
otherwise,  however,  in  the  internal  administration  of 
the  various  governments.  Here  the  iiilers  displayed 
a  serious  and  apparently  not  a  purely  selfish  interest 
in  promoting  the  welfare  of  their  subjects.  Far- 
reaching  reforms  were  effected  iu  taxation  and  in  ju- 
dicial procedure.  Commerce  and  industry  were  re- 
lieved of  restrictions  that  hampered  their  development. 
The  throttling  grip  of  ecclesiastical  authority  on  in- 
tellectual life  was  relaxed.  In  every  way  the  princes 
gave  sympathy  and  support  to  the  intelligent  and  pro- 
gressive middle  class  as  against  the  stagnating  clergy 
and  nobility. 

The  reforming  activity  of  the  monarchs  was  in 
many  notable  instances  directly  aided  by  the  phi- 
losophers of  the  day.  It  became  something  of  a  fad 
to  have  the  royal  projects  vised  by  the  thinkers  whose 


48  POLITICAL  THEORIES 

theories  were  embodied  in  them.  Frederick  the  Great 
was  too  hard-headed  a  statesman  to  be  carried  away 
by  this  idea :  he  could  and  did  supply  both  the  theory 
and  the  practice  of  his  policies.  Yet  his  relations  with 
Voltaire  were  significant  of  the  spirit  that  prevailed 
in  royal  courts.  The  politically  absolute  ruler  craved 
the  companionship  of  the  intellectually  absolute  sub- 
ject. It  is  not  strange  that  theories  about  state  and 
government  multiplied  in  number  and  audacity,  when 
the  most  clamorous  critics  of  existing  institutions  were 
so  conspicuously  honored  by  princes.  There  was 
in  this  practice  something,  indeed,  of  mere  patronage ; 
but  that  was  not  the  whole  of  the  matter.  A  deliberate 
alliance  was  struck  between  political  practice  and 
political  theory,  with  results  that  were  not  always 
discouraging.  Rousseau's  exploits  in  constitution-mak- 
ing ^  were  not  very  useful,  and  the  colossal  self-con- 
sciousness of  Mercier  de  la  Riviere  failed  to  civilize 
at  command  the  Russian  Empire  and  its  imperious 
mistress ;  ^  but  Turgot  in  France,  Beccaria  in  Milan 
and  Filangieri  in  Naples  are  shining  examples  of 
theorists  who  were  no  less  serviceable  in  practice. 

The  theories  and  the  reforms  that  met  with  favor 
in  the  European  monarchies  at  this  time  were  in  very 
large  measure  the  outcome  of  Montesquieu's  economic 
and  social   suggestions  and  doctrines.     It  would  be 

'  Supra,  p.  7. 

*  Catherine  summoned  the  philosopher  to  advise  as  to  a  proposed 
code  for  her  dominions.  She  was  not  favorably  impressed  with 
his  manner,  writing  to  Voltaire :  "  He  thought  we  were  stUl  going 
on  all  fours  and  he  very  politely  took  the  trouble  to  come  and 
show  us  how  to  stand  on  our  hind  legs."  For  the  whole  incident 
see  Physiocrates,  II,  431-433. 


INFLUENCE   OF  MONTESQUIEU  49 

hard  to  over-estimate  the  respect  and  deference  that 
were  shown  to  him  by  the  philosophers  of  the  day. 
Under  the  circumstances  there  might  reasonably  be 
expected  some  tendency  toward  adoption  of  his  more 
strictly  political  dogmas.  His  conception  of  a  repre- 
sentative body  as  essential  to  a  rational  monarchy, 
and  his  doctrine  of  the  separation  of  powers  as  in- 
dispensable to  liberty  ^  were  very  generally  accepted 
in  theory,  but  the  attempts  to  put  them  into  practice 
were  few  and  feeble.  The  princes  who  effectively 
promoted  reforms  in  administration,  judicature  and 
education  found  it  easiest  to  do  so  without  entering 
upon  the  difficult  task  of  governmental  reorganization. 
Only  in  France  and  Great  Britain  did  this  latter  issue 
become  prominent.  The  French  parlements  mani- 
fested aspirations  to  assume  the  role  of  defenders  of 
political  liberty  against  the  king,  and  they  were  sum- 
marily suppressed  by  Louis  XV  ia  1771,  leaving  the 
Bourbon  monarch  for  the  remainder  of  his  reign  un- 
questionably despotic,  but  as  unquestionably  free  from 
any  taint  of  enlightenment.  In  England  George  III 
devoted  himself  to  the  puipose  of  rescuing  the  royal 
authority  from  the  degradation  to  which,  as  he  con- 
sidered, it  had  been  reduced  by  Parliament.  For 
a  time  he  was  successful.  His  methods,  however,  as 
illuminated  by  the  controversies  of  the  English  parties, 
caused  thoughtful  observers  on  the  Continent  to  ques- 
tion the  accuracy  of  Montesquieu's  analysis  of  the 
constitutional    system,    or   the   justification    for   his 

^  Political  Theories  from  Luther  to  Montesquieu,  pp.  403-404, 
409  et  seq. 


50  POLITICAL  THEORIES 

eulogy  of  it.  Then  came  the  discontent  and  revolt  of 
the  Americans.  Their  cause  and  its  eventual  success 
brought  to  the  forefront  of  speculative  interest  the 
fundamental  principles  of  sovereignty,  liberty  and 
popular  self-government.  "VMien,  a  few  years  after 
the  achievement  of  American  independence,  a  crisis 
was  reached  in  French  politics,  hundreds  of  influential 
Frenchmen  were  familiar  with  the  institutions  and  the 
ideas  suggested  by  the  names  of  Washington,  Jefferson 
and  Franklin. 

The  concrete  problems  of  the  situation  in  France 
included  much  that  was  unknown  to  America.  But 
in  the  fundamental  philosophy  of  the  French  move- 
ment there  was  a  steady  tendency  to  conform  to  the 
lines  of  the  transatlantic  debate;  and  the  principles 
of  1789  in  the  one  land  are  closely  parallel  to  the 
principles  of  1776  in  the  other. 

2.   French  Social  and  Moral  Philosophy 

Prior  to  the  crisis  in  French  practical  politics  that 
produced  the  revolution  the  basic  doctrines  of  po- 
litical theory  were  influentially  debated  by  a  group  of 
thinkers  whose  chief  interest  was  social  and  ethical 
rather  than  strictly  political. 

Without  attempting  any  full  enumeration  or  classifi- 
cation of  these  philosophers  we  may  notice  briefly  a 
few  of  the  most  conspicuous.  Their  views  diverged 
very  widely  at  many  points.  All  voiced,  however, 
the  feeling  of  Montesquieu  and  Rousseau,  that  the 
civilized  society  of  their  day  was  corrupt  and  ill- 
adapted  to  the  requirements  of  rational  beings.    "  Na- 


THE   COMMUNISM   OF  MABLY  61 

ture/'  all  believed,  had  decreed  for  enlightened  men 
social  and  political  institutions  quite  different  from 
those  that  actually  existed.  Mankind  had  gone  astray 
and  philosophy  must  point  out  the  way  to  return  to 
the  "natural"  and  rightful  order  of  things.  As  to 
what  was  the  chief  source  of  corioiption  and  error, 
the  philosophers  differed  much  from  one  another. 
Some  found  it  in  private  property,  especially  in  the 
ownership  of  land,  and  set  forth  projects  of  communism 
and  socialism.  Others  found  it  in  a  perverted  con- 
ception of  morals  and  a  degrading  religious  belief, 
and  preached  Hobbesian  ethics  and  atheism.  All 
the  systems  of  proposed  reform  involved  suggestions 
of  political  improvement,  and  few  of  these  suggestions 
failed  to  reveal  the  indebtedness  of  their  sponsors  to 
the  comprehensive  genius  of  Montesquieu. 

The  chief  exponent  of  the  communistic  idea  was  the 
Abb^  Mably  (1709-85)  .^  He  found,  with  Rousseau, 
that  inequality  of  possessions  was  the  fountain-head 
of  social  and  political  evil;  and  he  believed  with 
Plato  that,  as  unwise  legislation  had  produced,  so  wise 
legislation  alone  could  remove,  the  vicious  conditions 
that  burdened  the  peoples.  By  nature  men  were  not, 
indeed,  endowed  all  with  equal  faculties;  but  the 
differences  were  insignificant  in  comparison  with  the 
inequalities  sanctioned  by  the  existing  social  order.^ 
In  recognizing  and  promoting  private  property  man- 
kind had  strayed  from  the  path  of  perfect  development. 

1  Morelly,  in  his  Code  de  la  Nature,  1755,  set  forth  a  very  complete 
and  coherent  system  of  communism.  This  was  never  so  well 
known  and  influential  as  Mably's  works. 

2  Mably,  De  la  Legislation,  I,  ii. 


52  POLITICAL  THEORIES 

Lust  for  possessions  and  for  power  had  supplanted 
the  natural  deference  to  virtue  and  talent.  The  need 
of  the  times,  Mably  argued,  was  far-reaching  reform 
in  the  direction  of  equality.  The  task  was  one  for  a 
law-giver  of  the  ancient  type,  who  should  by  a  drastic 
code  correct  the  aberrations  of  a  nation's  life  and  set 
the  people  on  the  straight  course  of  right  and  virtue. 
Lycurgus  and  Solon  figured  frequently  in  Mably's 
philosophy,  and  their  treatment  of  questions  of  property 
made  a  strong  appeal  to  him.  They  were  his  types  of 
the  legislator  who  is  guided  by  pure  reason  and  justice 
rather  than  selfish  class  interest.  It  was  because  so 
much  power  had  been  usurped  by  the  wealthy  and 
ambitious  that  the  sad  and  demoralizing  class  con- 
flicts persisted  in  society. 

Mably  was  wholly  Rousseauish  in  his  development 
of  social  and  political  doctrine.  With  more  logic  and 
less  literary  brilliancy  he  laboriously  expanded  the 
suggestions  of  Jean  Jacques  into  a  coherent  system.-^ 
Helvetius  and  Holbach,  the  other  two  thinkers  whom 
we  shall  consider  in  this  section,  were  ostentatiously 
hostile  to  Rousseau  at  many  points,  especially  in  re- 
spect to  religion.  While  he  passed  from  the  deism  of 
his  day  over  into  a  sentimentalism  that  left  little  dis- 
tinction between  him  and  the  more  mystic  devotees 
of  the  orthodox  cult,  his  philosophic  confreres  took  the 
opposite  direction  and  reached  almost  unqualified 
atheism.    Their  moral  and  political  doctrine  showed 

*"In  his  [Mably's]  most  important  work  ...  we  see  Rous- 
seau's notions  developed,  with  a  logic  from  which  their  first  author 
shrunk,  either  from  fear,  or  more  probably  from  want  of  firmness 
and  consistency  as  a  reasoner."     Morley,  Rousseau,  I,  185. 


HELVETIUS  ON  GOVERNMENT  53 

much  of  the  quality  of  Hobbes,  diluted  by  the  less 
virile  dogmas  of  Locke  and  Bolingbroke. 

Helvetius,  in  his  works  De  VEsprit  (1758)  and  De 
VHomme  (1772)  was  pronouncedly  Hobbesian  in  his 
ethics.  Men,  he  held,  are  born  with  substantially 
equal  powers  and  capacities,  and  their  conduct  is 
determined  solely  by  self-interest.  The  maximum 
happiness,  that  is,  satisfaction  of  desires,  is  the  motive 
of  all  their  actions.  To  this  end  societies  and  govern- 
ments are  constituted,  wherein  the  happiness  of  the 
greatest  number  becomes  the  test  of  excellence.  The 
varying  degrees  in  which  happiness  is  realized  and 
diffused  in  different  peoples  is  not  due  to  varieties 
in  the  form  of  government,  or  to  original  divergencies 
in  the  spirit  and  character  of  the  races.  Every  form 
of  government  operates  on  the  same  principle,  namely, 
the  love  of  power,  and  every  government  is  essentially 
despotic.  Democracy  and  aristocracy  possess  the 
same  power  and  act  on  the  same  motives  as  monarchy. 
Only  by  the  measure  of  enlightenment  displayed  by 
those  in  authority  is  one  government  better  than 
another.  Where  there  is  the  discernment  to  detect 
and  the  wisdom  to  apply  the  true  principles  by  which 
nature  regulates  human  affairs  (that  is,  of  course,  the 
principles  of  Helvetius),  there  will  be  good  government, 
whatever  the  particular  form.  The  character  of  a 
people  does  not  determine  the  nature  of  their  govern- 
ment, but  contrariwise  the  character  of  a  government 
has  an  enormous  influence  on  the  spirit  and  manners 
of  a  people.  This  latter  dogma  is  reiterated  in  many 
variations  by  Helvetius  and  is  fundamental  in  his 


54  POLITICAL  THEORIES 

teaching.  "The  vices  and  virtues  of  a  people  are 
always  a  necessary  effect  of  their  legislation."  ^  On 
this  priQciple  he  based  his  contribution  to  the  general 
chorus  of  philosophy  demanding  far-reaching  reforms 
in  the  social  and  political  system  of  his  day,  especially 
in  France.  For  despotism  jper  se  he  had  no  dislike, 
but  for  unintelligent  despotism  his  contempt  was 
mimeasured.^ 

More  specific  and  systematic  than  Helvetius  in 
strictly  pohtical  doctrine  was  his  associate  in  the 
fraternity  of  les  philoso'phes,  the  Baron  d'Holbach. 
The  Systeme  de  la  Nature  (1770)  and  Systeme  Social 
(1773)  ^  presented  as  to  politics  a  Gallicized  version  of 
Locke,  purged  of  the  errors  introduced  by  Rousseau. 
Man's  natural  state,  according  to  Holbach,  is  that  of 
rational  association  with  his  kind  imder  the  law  of 
nature.  The  glorification  of  the  savage  as  the  really 
natural  man  is  dismissed  as  the  fancy  of  a  morbid 
imagination.'*  From  natural  to  civil  society  the 
transition  is  made  by  contract,  express  or  tacit,  and 
the  effect  of  this  contract  is  to  establish  the  rule  of 
law.  By  law  is  meant  only  the  will  of  the  society  as 
a  whole.  Thus  conceived  it  is  the  absolute  norm  for 
social  and  political  life!  Its  end  is  the  end  for  which 
society  is  instituted,  viz.,  the  maximum  welfare  of  the 

'  De  VEsprit,  III,  xxii. 

^  Cf.  the  preface  of  the  De  V  Homme,  where  he  is  hopeless  of 
France's  future,  but  sees  great  promise  in  the  dominions  of 
Frederick  the  Great,  Catherine  II  and  Joseph  II. 

'  See  also  his  Politique  Naturelle  (1773)  and  U Ethocratie  (1776). 

^  Holbach  designates  the  theorists  who  glorify  the  bon  sauvage 
as  *' speculateurs  atrabiliaires"  —  which  is  sufficiently  crushing. 
Cf.  Systkme  Social,  I,  xvi. 


HOLBACH   ON   LIBERTY  55 

greatest  number  of  the  citizens.  Specifically  this 
welfare  means  the  guarantee  of  liberty,  property  and 
security  ^  —  a  modification,  not  particularly  happy,  of 
Locke's  trinity,  life,  liberty  and  property. 

Government,  Holbach  conceived,  is  but  the  group  of 
citizens  chosen  by  the  rest  to  promote  the  ends  of  the 
society.  There  is  a  contract  between  government  and 
subjects,  and  the  bond  ceases  to  hold  when  those  in 
authority  fail  to  promote  the  welfare  of  the  whole  body. 
This  general  welfare  Holbach  interprets  in  the  in- 
dividuahstic  spirit.  It  means  the  happiness  of  every 
man  so  far  as  his  own  efforts  can  achieve  it.  There- 
fore the  duty  of  the  government  is  to  enable  every  man 
to  work  out  his  own  good.  Where  this  duty  is  per- 
formed liberty  exists ;  for  liberty  is  but  the  power  to 
get  what  is  essential  to  well-being.^  Not  that  eveiy 
man  must  have  the  same  content  to  his  life  as  every 
other  man  in  order  to  be  free.  Liberty  does  not  mean 
equahty.  Nature  makes  men  unequal,  in  physical 
and  in  mental  strength.  The  law  that  insures  Hberty 
guarantees  to  every  man  the  product  of  his  endow- 
ment, protecting  equally  the  rich  and  the  poor,  the 
great  and  the  small,  sovereigns  and  subjects.^ 

As  to  forms  of  government,  Holbach  finds  all  alike 
defective  and  void  of  promise  for  permanent  good. 
Even  the  English  constitution,  so  highly  eulogized  by 

1  La  liberie,  la  propriete,  la  stlrete.    Systbme  de  la  Nature,  I,  ix. 

^  "  La  liberte  est  le  pouvoir  de  prendre  les  moyens  neeessaires 
pour  se  procurer  le  bien-etre."    Systeme  Social,  II,  iii. 

^  "  La  vraie  liberte  consiste  a  se  conf  ormer  a  des  lois  qui  remedient 
a  I'inegalite  naturelle  des  hommes,  e'est-a-dire,  qui  protegent 
egalement  le  riche  et  le  pauvre,  les  grands  et  les  petits,  les  souverains 
et  les  sujets."     Systhme  Social,  II,  iii. 


56  POLITICAL  THEORIES 

philosophers,  he  thinks  scarcely  more  promising  than 
the  rest.^  His  survey  of  the  contemporary  situation 
leads  to  the  despairing  reflection  that  there  is  not  on 
earth  a  well-ordered  political  constitution.^  Chance, 
mireason  and  violence  have  determined  the  establish- 
ment and  the  reform  of  governments.  It  is  time,  he 
urges,  for  a  radical  change  of  method.  In  the  full 
spirit  of  all  contemporary^  philosophy  he  calls  for  a 
return  to  the  natural  order  of  things  under  the  lead  of 
enhghtened  opinion.  Intelligent  men  must  cast  off 
theii'  indolence  and  their  blind  veneration  for  in- 
stitutions whose  age  is  their  only  virtue.  The  welfare 
of  the  people  and  the  imprescriptible  rights  of  men 
must  triumph  over  the  antiquated  systems  of  the 
past.^  Government  must  be  made  conformable  to 
the  clear  demands  of  reason  and  justice;  the  laws 
must  be  reduced  to  a  short  and  simple  code,  based  on 
natural  good  sense  .^  With  such  initial  changes  in 
institutions  and  laws,  the  character  of  the  peoples,  now 
sadly  astray  from  \irtue  and  uprightness,  will  be 
brought  back  to  its  true  mould. 

Holbach  is  acute  and  audacious  in  his  criticism  of 
poHtical  as  of  moral  theories  and  practices.  He  is 
vehement  and  stirring  in  his  exhortations  to  reform. 
But  the  general  effect  of  his  work  is  much  more  to 
create  the  conviction  that  everj'thing  is  wrong  than  to 
make  clear  the  way  of  reformation. 

Holbach,  and  in  general  the  group  of  thinkers  to 

»  Systhme  Social,  II,  vi.  ^  75^^.,  H,  ii.  s  /^^^^^^  m^  yj, 

<"Un  code  simple  et  court,  conforme  au  bon  sens  naturel." 
Ibid. 


RATIONAL  LIBERTY   SOUGHT  57 

which  he  belonged,  became  wholly  concrete  and  definite 
at  only  two  points  in  their  demands  for  reform  —  toler- 
ance as  to  religious  creed  and  freedom  of  the  press. 
These  they  held,  on  grounds  that  had  become  common- 
places of  philosophy,^  to  be  fundamental  in  any  rational 
conception  of  freedom.  The  peculiar  force  and  clarity 
with  which  these  dogmas  were  presented  were  testi- 
mony to  the  strenuous  conflict  of  the  day  between  the 
rationahstic  writers  and  the  ecclesiastics  who  used 
the  governmental  machinery  to  harass  them.^  Phi- 
losophy put  at  the  forefront  of  human  rights  those  that 
should  insure  the  comfort  and  happiness  of  the  in- 
tellectual class. 

3.   Physiocrats  and  Economists 

Quite  a  different  class  of  society  was  the  centre  of 
interest  to  the  famous  group  of  French  thinkers  known 
as  the  Physiocrats.  The  problems  which  they  sought 
to  solve  concerned  the  material  more  than  the  in- 
tellectual life  of  the  nations,  and  the  theme  of  their 
discussions  was  the  functions,  relations  and  prosperity 
of  those  classes  that  were  economically  productive  — 
farmers,  manufacturers  and  merchants.  "Political 
economy"  in  its  strict  etymological  sense  —  the  house- 
hold management  of  the  state  —  was  the  original 
field  of  physiocratic  speculation.  It  was  sought  to 
determine,  from  the  governmental  point  of  view,  the 

*  Political  Theories  from  Luther  to  Montesquieu,  Index  sub  voc. 
"  Expression,"  "  Toleration." 

*  Helvetius  left  his  De  V Homme  for  posthumous  publication  in 
order  to  escai)e  the  persecution  it  would  bring  upon  him.  See 
Preface  to  De  V  Homme. 


58  POLITICAL  THEORIES 

most  effective  methods  of  assuring  an  adequate  revenue 
to  the  state.  This  opened  up  the  whole  wide  subject 
of  taxation  —  its  objects,  operation  and  effects.  From 
this  the  transition  was  easy  into  questions  as  to  the 
sources  of  the  wealth  of  which  taxes  were  the  govern- 
ment's share,  as  to  the  methods  of  its  production  and 
distribution,  as  to  its  relations  to  the  general  welfare, 
and  to  the  particular  character  and  size  of  a  given 
population. 

With  the  more  purely  economic  developments  of 
physiocratic  doctrine,  interesting  and  important  as 
they  were,  we  are  precluded  by  the  scope  of  this  work 
from  detailed  concern.  The  foundation  of  political 
theory,  however,  which  was  carefully  placed  under 
the  economic  doctrines,  is  significant  and  well  worth 
some  attention.  Its  importance  is  not  that  of  inno- 
vation, but  rather  of  support  from  a  new  standpoint 
to  a  familiar  philosophy.^ 

The  two  concrete  policies  that  engaged  the  chief 
interest  of  the  Physiocrats  were  the  introduction  of 
the  single  tax  {impot  unique)  on  land  and  the  abolition 
of  the  internal  duties  on  the  grain  trade  in  France. 
It  was  not  hard  to  show  that  these  poHcies  promised 
much  in  the  way  of  easy  revenue  to  the  government 
and  prosperity  to  the  people  in  general.  Such  utili- 
tarian argument  made  no  conclusive  appeal,  however, 
to  the  spirit  of  the  time,  and  it  was  necessary  to  prove 
that  the  single  tax  and  free  trade  were  required  by 

^  An  excellent  summary  of  physiocratic  doctrine  is  embodied 
in  the  short  work  by  the  youngest  of  the  school,  Dupont  de  Nemours, 
Origine  et  Progrhs  d'une  Science  Nouvelle,  reprinted  in  Physiocrates, 
Par.  I,  p.  335. 


PHYSIOCRATIC   FUNDAMENTALS  59 

nature  and  by  nature's  law.  Dr.  Quesnay,  in  his 
Natural  Right, ^  and  Mercier  de  la  Riviere,  in  The 
Natural  and  Essential  Order  of  Political  Societies,^ 
furnished  this  requisite  theory,  which  was  summarily 
as  follows : 

Justice  is  the  very  first  condition  of  all  society,  and 
indeed  a  condition  of  human  life  prior  to  society. 
Justice  consists  essentially  in  regard  for  two  rights 
that  belong  by  nature  to  eveiy  man,  namely,  liberty 
and  property.  In  forming  the  body  politic  men  do  not 
renounce  any  of  their  natural  rights.  On  the  contrary, 
the  whole  end  of  association  is  to  extend  the  enjoyment 
of  these  rights. 

Laws  {les  lots)  are  rules  of  justice  and  morality,  the 
supreme  reason  that  governs  the  universe.  They  are 
never  made,  but  merely  discovered,  by  men,  who  may 
be  legislateurs,  but  never  legisfadeurs.  Only  ordinances 
can  be  made  by  human  authority,  and  these  have  for 
their  end  the  execution  of  the  laws. 

Three  species  of  property  are  included  in  the  natural 
rights  of  every  individual.  First,  the  property  of 
his  person,  which  includes  the  right  to  use  all  his 
faculties,  and  hence  the  right  to  labor.  Second,  the 
movable  property,  which  consists  of  the  results  of  his 
labor.  Third,  landed  property  {propriete  fonciere). 
All  property  is  limited  by  the  other  properties  sur- 
rounding it,  as  all  liberty  is  limited  by  the  other 
liberties. 


^  Le  Droit  Naturel  (1765),  in  Physiocrates,  Par.  I,  p.  41. 
2  L'Ordre   Naturel  et    Essential    des  Societes    Politique^    (1767), 
reprinted  in  Physiocrates,  Par.  II,  p.  445. 


60  POLITICAL  THEORIES 

Society  is  organized  to  provide  a  mutual  guarantee 
of  these  various  individual  properties.  For  this  end  a 
guardian  authority  is  necessary,  which  must  centre 
in  a  sovereign  armed  with  a  force  sufficient  to  over- 
come all  obstacles.  The  sovereign  must  be  a  unity. 
There  can  be  no  division  of  sovereign  powers.  The 
sovereign  authority  is  not  instituted  to  make  laws,  for 
laws  are  already  made  by  the  Supreme  Being  who 
creates  rights  and  duties.  Positive  enactments  by 
sovereigns  can  be  only  declaratory  of  the  essential 
laws  of  the  social  order  {his  essentielles  de  Vordre  social), 
the  laws  namely  of  liberty  and  property.  Ordinances 
contrary  to  these  essential  laws  are  null.^ 

It  is  the  great  duty  of  sovereigns  to  promulgate 
through  their  positive  ordinances  the  natural  and 
essential  laws  of  the  social  order.  The  legislative,  or 
more  strictly  the  law-declaring,  power  and  the  execu- 
tive power  belong  exclusively  to  the  sovereign.  On  the 
other  hand,  the  function  of  judging  the  citizens  is  in- 
compatible with  sovereignty ;  for  the  judicial  function 
requires  the  investigation  of  minute  details  and  the 
judgment  of  special  cases,  which  would  be  foreign  to 
the  whole  end  of  sovereignty. 

Magistrates,  that  is,  judges,  must  compare  the 
positive  ordinances  with  the  laws  of  justice,  and  apply 
the  ordinances  only  so  far  as  they  conform  with  these 
laws.  It  follows  from  this  duty  of  judges  that  a  very 
high  degree  of  training  is  indispensable  to  them  in 

*  "  II  y  a  done  un  juge  naturel  et  irrecusable  des  ordonnanees 
mgmes  des  souverains  et  ee  juge  est  I'evidence  de  leur  conformite 
ou  de  leur  opposition  aux  lois  naturelles  de  I'ordre  social."  Du- 
pont  de  Nemours,  Origine  et  Progres,  sec.  viii. 


MONARCHY   WITH   THE   SINGLE   TAX  61 

order  that  they  may  know  well  the  "natural  and  es- 
sential laws  of  the  social  order." 

As  to  the  best  form  of  government  physiocratic 
doctrine  stood  stoutly  for  hereditary  monarchy.  No 
danger  from  despotism  need  be  feared  so  long  as  the 
philosophers'  system  should  be  faithfully  maintained. 
Under  this  system  the  protection  of  liberty  and  property 
would  be  the  sole  function  of  the  monarch ;  his  ordi- 
nances for  this  purpose  would  be  subject  to  the  judgment 
of  enlightened  magistrates  in  cases  where  particular 
citizens  were  concerned ;  and  the  chief  source  of  op- 
pression upon  the  whole  community  would  be  removed 
by  the  fiscal  system  based  upon  the  single  tax  on  land, 
whereby  an  adequate  revenue  for  the  crown  would 
automatically  accompany  the  maximimi  of  well-being 
for  all  the  subjects. 

The  foregoing  resume  of  physiocratic  doctrine  shows 
clearly  enough  the  relation  of  the  political  theory  it 
involves  both  to  Locke  and  Montesquieu  and  to  the 
contemporary  French  thought.  Where  Helvetius  and 
Holbach  found  the  beneficent  "nature"  that  must 
restore  human  happiness  in  psychological  truths  and 
moral  virtues,  the  Physiocrats  found  it  in  the  con- 
ditions determining  the  production  and  use  of  material 
wealth.  On  the  one  hand  there  was  a  refurbishing 
of  dogmas  and  formulas  as  old  as  literature  and  phi- 
losophy ;  on  the  other  there  was  a  systematic  and  com- 
prehensive marshalling,  for  the  first  time  in  history,  of 
vital  principles  of  social  life.  The  reforms  demanded 
by  the  Physiocrats  tended  as  a  whole  to  trench  deeply 
on   the   hitherto   recognized   field   of   state   activity. 


62  POLITICAL  THEORIES 

Goumay,  the  earliest  of  the  school,  made  the  world 
familiar  with  the  famous  formula  for  the  government's 
most  effective  promotion  of  commerce  and  industry, 
laissezfaire,  laissez  passer.  Abolition  of  the  ancient  re- 
strictions on  French  trade  and  manufactures  was  a  cen- 
tral feature  of  the  Physiocrats'  programme  of  practical 
reform,  and  their  theory  included  among  the  natural 
rights  of  men  freedom  of  labor,  freedom  of  exchange, 
and  in  general  freedom  from  all  restraints  upon  the 
use  of  their  faculties  and  their  property.  Economic 
law  might  be  depended  upon  to  bring  about  the  best 
good  of  men  and  nations  if  governments  kept  their 
hands  off.  In  one  respect,  however,  the  Physiocrats 
demanded  the  positive  and  powerful  application  of 
the  sovereign's  authority,  and  that  was  in  educa- 
tion. Public  instruction  must  be  maintained  in 
order  that  citizens,  magistrates  and  majesty  itself 
might  never  lose  sight  of  the  unvarying  laws  of  social 
order,  that  is,  of  the  great  truths  of  Physiocratic 
philosophy.^ 

The  eminent  Turgot,  though  too  broad  in  his  phi- 
losophy to  be  called  strictly  one  of  the  Physiocrats, 
gave  great  support,  nevertheless,  to  their  system  both 
in  his  public  career  and  in  his  writings.  As  Intendant 
at  Limoges  he  applied  physiocratic  principles  in  a  re- 
markable effort  to  improve  the  desperate  condition 
of  agriculture  and  industr}^  in  that  region.  Called  to 
the  ministry  of  finance  in  1774,  he  entered  vigorously 
upon  projects  for  a  general  reform  of  the  royal  ad- 
ministration and  revenue,  but  fell  before  the  resistance 

^  Dupont  de  Nemours,  Origine  et  Progrbs,  see.  xxi. 


THE   DOCTRINES  OF  TURGOT  63 

of  the  privileged  classes  and  established  interests.^ 
Turgot's  proposals,  though  unsuccessful,  profoundly 
influenced  the  thought  of  the  time.  His  policy  in- 
cluded the  general  freedom  of  commerce  in  grain, 
sweeping  reforms  of  the  land  tax,  the  removal  of  many 
antiquated  restrictions  on  manufactures  and  the  abo- 
lition of  the  guildlike  monopolies  called  jurandes. 
Every  proposal  was  accompanied  by  a  philosophical 
explanation  and  defence  of  the  measure;  and  the 
general  tenor  of  these  justifying  pieces,  together  with 
his  earlier  Eulogy  of  Gournay  (1760)  and  Reflections  on 
the  Production  and  Distribution  of  Wealth  (1766), 
rightly  gave  the  support  of  his  great  name  to  the 
theories  of  governmental  functions  held  by  the  Physio- 
crats. Like  them  he  sustained  enlightened  monarchy 
as  the  best  form  of  government.  Like  them  he  placed 
the  economic  freedom  of  the  individual  high  among 
the  natural  rights.  His  philosophy  was  not  bounded, 
however,  by  the  narrower  economic  interest ;  and  his 
assertion  of  the  rights  of  labor  and  trade  was  no  more 
vigorous  than  his  defence  of  that  less  novel  item 
of  liberal  political  theory,  the  right  of  religious 
freedom.^ 

As  the  course  of  events  in  France  tended  steadily 
to  subordinate  all  other  speculation  to  that  bearing  on 
constitutional  issues,  the  tradition  of  purely  economic 
doctrine  crossed  the  Channel  to  the  calmer  atmosphere 
of  Great  Britain  and  found  an  exponent  and  promoter 

'  For  a  summary  view  of  his  administration  see  Morley,  Miscel- 
lanies, II,  150  et  seq. ;  fuller  account  in  Tissot,  Turgot,  133  et  seq. 

2  Cf.  Memoir  to  the  king  on  Toleration,  June,  1775.  Also 
Tissot,  op.  cit.,  348  et  seq. 


64  POLITICAL  THEORIES 

in  Adam  Smith.  His  Wealth  of  Nations,  first  published 
in  1776,  determined  the  t5^e  of  pohtical  economy  as  an 
independent  science.  The  close  relation  of  this  work 
to  physiocratic  doctrine  on  the  economic  side  is  ob- 
vious. On  the  side  of  political  theory  Smith  discarded 
the  formal  elaboration  of  the  doctrines  on  which 
Quesnay  and  La  Riviere  built  up  their  science ;  but 
the  tacit  assumption  of  these  doctrines  appears  fre- 
quently throughout  the  Wealth  of  Nations.  Thus  it 
repeatedly  appears  in  that  work  that  it  is  no  function 
of  government  to  determine  how  capitalists  shall  em- 
ploy their  resources ;  that  it  is  the  natural  right  of  His 
Majesty's  subjects  to  exercise  what  species  of  industry 
they  please.^  Industrial  and  commercial  freedom  thus 
is  the  premise  of  Smith's  economic  teaching.  The 
theoretical  development  of  this  premise  in  his  own 
mind  is  revealed  in  the  recently  discovered  notes  on 
his  lectures  as  imiversity  professor  in  1763.'^  These 
lectures  were  not  published,  however,  and  their  in- 
fluence was  thus  limited  to  the  relatively  small  circle 
of  his  students.  Smith's  political  thought  as  here 
revealed  is  interesting  in  some  respects ;  but  when 
summed  up,  so  far  as  is  possible  from  the  mere 
student's  notes  that  have  come  down  to  us,  it 
appears  to  be  an  ingenious  but  hardly  fertile  blend 

*  Wealth  of  Nations,  TV,  ii.  Cf.  the  famous  passage  referring  to 
restrictions  upon  American  manufacturers :  "To  prohibit  a  great 
people  .  .  .  from  making  all  that  they  can  of  every  part  of  their 
products,  or  from  employing  their  stock  and  industry  in  the  way 
that  they  judge  most  advantageous  to  themselves,  is  a  manifest 
violation  of  the  most  sacred  rights  of  mankind."     Ibid.,  IV,  vii. 

^  Adam  Smith's  Lectures,  Police,  Revenue  and  Arms.  Edited 
by  Edwin  Cannan,  1896. 


FERGUSON'S   HISTORICAL  SPIRIT  65 

of   what   had    already   been   enunciated    by    Locke, 
Montesquieu  and  Hume.^ 

4.  Adam  Ferguson 

Another  Scot,  Adam  Ferguson  (1723-1816),  the 
contemporary  and  friend  of  Adam  Smith,  and  scarcely 
less  famous  than  Smith  during  their  lives,  developed 
doctrines  of  social  and  political  philosophy  that  are 
for  our  pinpose  more  significant  than  those  in  the 
Wealth  of  Nations.  The  critical  spirit  of  Hume  and 
the  historical  spirit  of  Montesquieu  were  most  at- 
tractively combined  in  Ferguson.  He  stood  quite 
apart  from  the  fervid  a-priorism  of  the  French  thinkers 
of  his  day.  While  they,  and  with  them  Adam  Smith, 
set  up  absolute  standards  by  which  to  realize  the 
social  ends  discussed  in  the  Spirit  of  the  Laws,  Ferguson, 
more  faithful  to  the  author's  innermost  feeling,  dis- 
carded all  ready-made  systems  of  what  is  "natural," 
and  studied  society  and  its  institutions  as  "going" 
concerns,  beyond  hope  of  control  by  even  the  wisest 
philosophers.  His  interest  was  to  determine  by  the 
light  of  history  whither  society  was  moving,  not  by 
superhuman  wisdom  to  fix  its  course.  The  problems 
that  thus  appealed  to  him  had  been  more  or  less  dis- 
cussed by  Hume,  and  the  incisive  scepticism  of  this 
philosopher,  in  assailing  pretentious  dogmas  and  long- 
current  beliefs,  was  abundantly  reflected,  though  much 
softened  in  form,  throughout  Ferguson's  work. 

His  most  influential  treatise  was  his  Essay  on  Civil 

*  For  a  suggestive  estimate  see  Hasbach,  in  Political  Science 
Quarterly,  XII,  684. 

F 


66  I»OLITICAL  THEORIES 

Society,  published  in  1765.  More  systematic  but  of 
less  attractive  literary  form  was  his  Princi'ples  of  Moral 
and  Political  Science  (1792),  embodying  his  lectures 
as  professor  in  the  University  of  Edinburgh.^ 
Fundamental  in  both  these  works  was  Ferguson's 
emphasis  on  the  unforeseen  and  unwilled  elements 
determining  social  and  political  growth.  He  had  none 
of  the  enthusiasm  of  the  French  reformers  for  re- 
modelling institutions  on  principles  of  a  priori  science. 
The  origin,  the  policy  and  the  governmental  order  of  a 
state  are  determined,  he  held,  by  circumstances,  quite 
without  reference  to  the  speculations  of  philosophers. 
"No  constitution  is  formed  by  concert,  no  govern- 
ment is  copied  from  a  plan."  ^  It  is  in  vain  that 
statesmen  seek  ingenious  devices  for  promoting  the 
arts  and  commerce  by  political  means.  Not  positive 
legislation,  but  the  uncontrollable  operation  of  the 
principles  on  which  social  life  rests,  fixes  the  course  of 
progress  in  civilization.^ 

This  fundamental  divergence  from  the  dominant 
philosophy  of  his  time  is  further  developed  in  Ferguson's 
views  about  "nature."  None  of  the  long  current 
concepts  denoted  by  this  term  appeals  to  him.  In 
his  view  whatever  is,  is  natural.  "All  the  actions  of 
men  are  equally  the  result  of  nature."^  Art  and 
refined    society    are    as    truly  natural    to    man    as 

'  Like  Hume,  Ferguson  was  historian  as  well  as  philosopher. 
His  work  on  the  Progress  and  Termination  of  the  Roman  Republic 
(1783)  was  famous  and  popular. 

2  Essay  on  Civil  Society,  Pt.  Ill,  seo.  2. 

^Ibid.,  111,7,8;  IV,  1. 

*  Ibid.,  1, 1.     Cf.  Principles  of  Moral  and  Political  Science,  I,  3, 1. 


STRIFE    THE    LAW   OF   PROGRESS  67 

barbarism.  Neither  Rousseau's  gentle  savage  nor 
Hobbes's  warlike  savage  nor  the  sublimated  being  in 
whom  the  idealists  have  concentrated  pure  reason  is 
in  any  peculiar  sense  the  natural  man.  The  state  of 
nature  is  neither  a  condition  of  listless  contentment 
nor  one  of  ruthless  strife  for  mastery  nor  yet  the  serene 
emotionless  contemplation  of  the  sage.  Man  is  a 
complex  being  and  the  one  truth  that  history  cer- 
tainly reveals  is  that  no  single  faculty  is  more  char- 
acteristic than  any  other.  He  is  a  being  destined  to 
progress,  and  no  single  stage  in  his  progress  is  more 
distinctively  human  than  any  other. 

What  especially  repelled  Ferguson  from  the  Rous- 
seauish  and  Hobbesian  and  Stoic  conceptions  of  the 
natural  state  of  man  was  the  implication  in  all  of 
them  that  peace  and  stability  constituted  the  goal  of 
social  and  political  science.  He,  on  the  contrary,  re- 
garded opposition  and  strife  among  men  and  com- 
munities as  not  only  inevitable,  but  also  beneficent.^ 
Effort  was  the  necessary  concomitant  of  progress. 
The  strenuous  life  was  the  normal  life  of  man.  Com- 
petition in  politics,  industry  and  commerce  and  war 
in  international  relations  were  merely  expressions  of 
this  truth  and  could  never  be  exorcised  by  speculation 
from  human  affairs.  This  thought  recurs  very  often 
in  Ferguson's  works  and  gives  to  his  philosophy  much 
of  its  most  characteristic  quality.^    Civil  liberty  and 

^  "  Without  the  rivalship  of  nations  and  the  practice  of  war,  civil 
society  itself  could  scarcely  have  found  an  object  or  a  form.  .  .  . 
He  who  has  never  struggled  with  his  fellow-creatures  is  a  stranger 
to  half  the  sentiments  of  mankind."     Civil  Society,  I,  4. 

2  Cf.  Civil  Society,  I,  9 ;  III,  1,  2,  4 ;  IV,  2,  3,  4. 


68  POLITICAL  THEORIES 

economic  prosperity  he  finds  to  be  in  large  measure 
the  miforeseen  products  of  political  and  military  strife. 
The  application  of  the  principles  just  described  is 
the  distinctive  feature  of  Ferguson's  doctrine  as  to  the 
origin  and  growth  of  society  and  government.  In- 
stinct and  habit,  not  reason  and  calculation,  create 
social  forms. ^  Men  are  equal  only  in  the  right  to  exist 
and  employ  their  faculties.  These  faculties  vary  in 
quality  and  efficiency,  and  therefore  gradation  is  of 
the  essence  of  social  grouping.  The  only  natural  right 
is  that  of  using  the  faculties  that  one  is  endowed  with 
and  of  resisting  any  obstruction  to  such  use.  Out  of 
the  blind  efforts  of  the  individual  to  secure  his  happi- 
ness, that  is,  his  existence,  arise  the  order  and  the 
authority  of  a  society.  Out  of  the  efforts  of  societies, 
or  nations,  to  secure  their  respective  interests,  that  is, 
their  existence,  political  institutions  and  authority  take 
shape.  The  forms  and  powers  of  government  are  de- 
termined by  the  incidents  of  these  struggles,  not  by 
the  classification  and  speculations  of  philosophers. 
Ferguson  is  especially  contemptuous  towards  those 
who  would  have  political  organizations  adapted  pri- 
marily to  the  promotion  of  culture  and  virtue.  These 
are  indeed,  he  concedes,  most  desirable  ends;  but 
nations  do  not  consciously  seek  them.  Interest  and 
profit  furnish  the  motives  by  which  nations  actually 
determine  their  organizations  and  policies ;  moral  and 
intellectual  uplift,  when  it  comes,  is  but  a  by-product.^ 

1  Men  "pass  on,  like  other  animals,  in  the  track  of  their  nature, 
without  perceiving  its  end."     Civil  Society,  III,  2. 

2  Civil  Society,  III,  3.     Ferguson  does  not,  of  course,  use  this 
term. 


GOVERNMENT   BASED    ON   CONSENT  69 

Despite  his  repudiation  of  conscious  purpose  and 
will  in  the  origin  and  progress  of  society,  Ferguson 
ultimately,  in  his  lectures  on  political  science,  felt 
obliged  to  introduce  contract  as  an  element  in  the 
philosophy  of  government.  While  authority  in  society 
is  a  de  facto  attribute  of  superior  persons  or  classes, 
it  is  limited  in  scope,  he  held,  to  the  prevention  of 
harm.  The  wider  power  of  de  iure  government  de- 
pends upon  consent  and  compact  of  the  parties  con- 
cerned.^ Not  that  government  is  actually  instituted 
by  formal  compact.  This  idea  he  clearly  rejects. 
The  transition  from  instinctive  society  to  conscious 
polity  is  gradual.  Conventions  and  agreements  that 
give  rise  to  state  forms  and  laws  are  made  from  time 
to  time  to  correct  or  prevent  abuse  of  the  power  that 
had  its  origin  in  unreflecting  submission.^  With  ad- 
vanced intellectual  development,  social  institutions 
become  largely  consensual  and  thus  political.  Their 
original  quality,  however,  never  wholly  disappears. 
Sovereignty,  government  and  law  have  for  their  end 
the  security  of  individuals  or  groups.  The  consent 
on  which  political  organization  and  action  rest  never 
extends  to  violations  of  natural  rights  or  natural  law. 
Neither  sovereign  nor  magistrate  possesses  an  arbitrary 
and  unlimited  authority. 

At  this  point  Ferguson  came  fully  into  the  current 

1 "  It  is  a  manifest  principle  of  the  law  of  nature  that  a  right 
to  command  or  an  obligation  to  obey  beyond  what  is  required  to 
the  mere  prevention  of  harm,  can  be  founded  in  consent  alone." 
Mor.  and  Pol.  Science,  Vol.  II,  p.  244. 

'  As  e.g.,  of  the  child  to  the  parent,  of  the  weak  to  the  strong, 
the  poor  to  the  rich,  etc.    Mor.  and  Pol,  Science,  Vol.  I,  p.  262. 


70  POLITICAL  THEORIES 

of  Locke's  political  theoiy  and  was  not  distinguishable 
from  the  dominant  doctrine  of  the  day.  Nature,  he 
maintained,  provided  a  limit  that  clearly  marked  the 
scope  of  sovereign  governmental  power.  He  was 
scarcely  less  sure  than  the  French  philosophers  or 
Adam  Smith  that  the  natural  rights  of  the  individual 
could  be  marshalled  in  formulas  that  should  fix  for  all 
times  and  places  the  bounds  of  political  authority. 
His  doctrines  as  to  rights  and  liberty  and  law  present 
little  that  is  novel  or  striking.^  He  appears  clearly 
enough  as  hostile  to  absolutism  in  state  or  govern- 
ment. The  rigid  demonstration  by  Hobbes  of  mi- 
limited  sovereignty  Ferguson  combats  by  denying 
Hobbes's  premises.^  Liberty,  on  the  other  hand,  is 
carefully  distinguished  from  license  and  is  held  not  to 
imply  equality.^  The  forms  and  functions  of  govern- 
ment are  treated  with  little  variation  from  the  dogmas 
of  Locke  and  Montesquieu. 

These  later  views  of  Ferguson  on  politics  proper 
appear  little  in  keeping  with  the  tone  and  spirit  of 
his  social  doctrines.  He  exhibits  a  good  deal  of  the 
a-priorism  that  his  Essay  on  Civil  Society  so  cleverly 
condemns.  In  this  very  fact,  however,  the  inner- 
most temper  of  the  philosopher  is  revealed.  His  was 
a  moderate,  conservative,  optimistic  spirit,  with  an 
obvious  touch  of  the  C5rnicism  that  much  study  of 
history  is  likely  to  create.  Extremes  and  extrava- 
gance in  thought  or  action  alienated  him.  Accord- 
ingly his  work  of  1765  was  a  protest  based  on  history 

*  See  his  Mor.  and  Pol.  Science,  Part  II,  chaps,  iii  and  vi. 

2  Ibid.,  Pt.  II,  chap,  iii,  sec.  10.  ^  Ibid.,  II,  vi,  7. 


THE   INFLUENCE    OF  BECCARIA  71 

against  the  philosophy  of  reform  proposed  ;  his  work  of 
1792  was  a  protest,  on  the  only  ground  that  then  could 
claim  a  hearing,  against  the  facts  of  revolution  achieved. 

5.   The  Legalists 

In  addition  to  the  social,  moral  and  economic  doc- 
trine that  influenced  the  form  of  political  theory  in 
the  sixties  and  the  following  decades,  noteworthy 
discussions  of  jurisprudence  in  one  or  another  of  its 
aspects  contributed  much  to  the  same  end.  Under 
this  head  must  be  mentioned  the  influential  essay  of 
Cesare  Beccaria,  the  Italian  jurist,  on  Crimes  and  Pun- 
ishments} The  substance  of  this  little  work  was  a 
plea  for  far-reaching  reform  in  criminal  law  and  pro- 
cedure on  the  Continent.  Protests  against  the  bar- 
barous practices  that  were  in  vogue  in  both  the  trial 
and  the  punishment  of  accused  persons  were  a  feature 
of  all  the  programmes  of  social  amelioration  at  this 
period.  Montesquieu  had  sketched  the  ends  toward 
which  improvement  should  be  directed.^  Beccaria  filled 
out  the  sketch  with  a  force  and  clarity  of  presentation 
that  won  universal  applause.  The  approval  of  his 
plea  for  rational  methods  in  restraining  crime  naturally 
extended  to  the  general  principles  on  which  the  special 
plea  was  based.  He  became  thus  an  influential  pro- 
moter of  the  dogmas  that  the  sole  aim  of  legislation 
should  be  the  greatest  good  of  the  greatest  number ;  ^ 
that  laws  (leggi)  are  but  the  conditions  under  which 

^  Dei  Delitti  e  delle  Pene,  first  published  in  1764. 
^  Esprit  des  Lois,  liv.  vi  and  xii. 

'  La  massima  felicita  divisa  nel  maggior  numero.  Delitti  e 
Pene,  Introduzione,  p.  30. 


72  POLITICAL  THEORIES 

men,  naturally  independent,  unite  themselves  into 
society;  that  individual  self-interest  is  the  supreme 
motive  of  human  actions,  both  before  and  after  enter- 
ing into  social  bonds ;  ^  and  that  laws  and  punish- 
ments are  just,  therefore,  only  so  far  as  they  are  in- 
dispensable to  the  maintenance  of  society.  From 
these  distinctly  Hobbesian  principles  Beccaria  reaches 
conclusions  in  favor  of  a  clear,  compact  and  explicit 
code  of  criminal  law,  intelligible  to  all,  shaped  by  pure 
reason  and  secure  against  the  influence  of  passion  or 
prejudice  in  its  application.  This  ideal  illustrates  again 
the  trend  of  thinking  that  has  been  noted  in  the  moral 
and  economic  field. ^ 

Blackstone,  whose  Commentaries  ^  also  first  appeared 
in  that  remarkable  decade  of  the  sixties,  is  significant 
in  the  history  of  political  theory  in  the  same  incidental 
way  as  Beccaria.  Montesquieu's  eulogy  had  given  so 
exalted  a  reputation  to  the  constitution  and  laws  of 
England  that  an  analysis  and  exposition  of  them  could 
not  have  failed  to  attract  general  attention  even  if 
the  author  had  lacked  the  learning  and  literary  faculty 
that  Blackstone  so  conspicuously  possessed.  The 
main  theme  of  his  Commentaries  is  preceded  by  his 
views  on  law  in  general  and  on  the  nature  of  society 
and  civil  government.^    In  this  are  foimd  dogmas  and 

^  Nessun  uomo  ha  fatto  il  dono  gratuito  di  parte  della  propria 
liberta  in  vista  del  ben  pubblico ;  questa  chimera  non  esiste  che 
ne'  Romanzi.     Ibid.,  sec.  ii. 

From  this  it  follows  that  the  public  good  is  merely  the  sum  of 
individual  goods,  i.e.,  the  good  of  the  majority. 

*  Supra,  pp.  56,  60. 

'  Commentaries  on  the  Laws  of  England,  first  ed.  1765. 

*  Introduction,  see.  ii. 


NATURAL  LAW   IN  BLACKSTONE  73 

formulas  that  were  made  axiomatic  in  the  thinking  of 
all  English-speaking  people  by  the  vogue  attained 
by  Blackstone  as  an  authority  on  law. 

There  was  little  of  novelty,  however,  in  his  prin- 
ciples. He  summed  up  and  elegantly  expressed  the 
ideas  that  were  considered  respectable  by  English 
gentlemen  of  his  day.  For  such  ideas  his  hospitality 
was  perhaps  too  generous;  for  they  were  welcomed 
to  a  place  in  his  system  wdth  small  regard  to  scientific 
consistency.  The  most  antique  and  venerable  moral 
and  religious  proprieties  were  satisfied  by  the  recog- 
nition of  a  law  of  nature,  willed  and  partially  revealed 
by  God,  and  discoverable  by  himian  reason.  More 
recent  and  fashionable  ethics  was  then  recognized  by 
the  dictum  that  self-love  is  the  God-implanted  prin- 
ciple of  human  action,  and  that  the  sole  and  sufficient 
precept  of  natural  law  is:  "man  should  pursue  his 
own  true  and  substantial  happiness."  This  Blackstone 
followed  with  the  ancient  dogma  that  human  laws 
have  no  validity  if  contrary  to  the  laws  of  nature. 

In  his  distinctively  political  theories  ^  Blackstone 
followed  Locke  and  Montesquieu  rather  closely.  He 
rejected,  however,  the  idea  that  society  could  have 
originated  in  the  dehberate  agreement  of  previously 
isolated  individuals.^  Such  a  notion  he  believed  "  too 
wild  to  be  seriously  admitted,"  and,  moreover,  plainly 
contradictory  to  Revelation.  Communities  grew  up 
gradually  through  the  efforts  of  individuals  to  secure 

'  Commentaries  (13th  ed.,  1800),  Vol.  I,  pp.  46  et  seq. 
*  For  Locke  on  this  point  cf.  Political  Theories  from  Luther  to 
Montesquieu,  pp.  350  et  seq. 


74  POLITICAL  THEORIES 

their  respective  interests,  and  the  "original  compact 
of  society"  signifies  only  the  arrangement  through 
which  the  community  protects  the  individual  and  the 
individual  submits  to  the  laws.  Government  is  the 
agency  through  which  the  community  performs  its 
fimctions  under  this  compact,  and  the  essential  at- 
tribute of  every  government  is  a  "supreme,  irresistible, 
absolute,  uncontrolled  authority  in  which  the  iura 
summi  im'perii,  or  rights  of  sovereignty,  reside." 

In  taking  up  so  rigorous  and  uncompromising  a 
conception  of  sovereignty  Blackstone  separated  from 
Locke  and  Montesquieu,  who,  as  we  have  seen,^ 
avoided  the  term.  But  the  separation  was  only  tem- 
porary. He  defined  sovereign  as  synonymous  with 
law-maker  and  foimd  it,  for  Great  Britain,  in  Parlia- 
ment. This  brought  him  to  the  real  goal  of  his  analysis 
—  a  glorification  of  the  British  constitution  as  a  perfect 
example  of  the  mixed  form  of  government,  and  as  a 
system  in  which  "political  or  civil"  liberty  falls  "little 
short  of  perfection."  Blackstone  manifested  no  mis- 
givings about  the  compatibility  of  perfect  Mberty  with 
the  "irresistible,  absolute,  uncontrolled  authority"  of 
the  sovereign.  He  insisted  no  less  strenuously  on  the 
paramount  natural  rights  of  the  individual  than  on  the 
paramount  legislative  will  of  the  government.^ 

1  Political  Theories  from  Luther  to  Montesquieu,  pp.  352,  411 ; 
cf.  also  p.  381.  Blackstone  may  have  been  under  the  influence  of 
Bolingbroke  at  this  point.  "  There  must  be  an  absolute,  unlimited 
and  uncontrollable  power  lodged  somewhere  in  every  government." 
Bolingbroke,  Works,  IV,  244.  But  Bolingbroke  elsewhere  expresses 
ideas  quite  inconsistent  with  this. 

^  "Society,"  "government"  and  "sovereign"  are  used  without 
disorimination  by  Blackstone. 


SOME    INCOHERENT   DOCTRINE  75 

The  principal  aim  of  society  is  to  protect  individuals  in 
the  enjoyment  of  those  absolute  rights  which  are  vested  in 
them  by  the  immutable  laws  of  nature;  .  .  .  the  first  and 
primary  end  of  human  laws  is  to  maintain  and  regulate  these 
absolute  rights  of  individuals.^ 

These  absolute  rights  Blackstone  defined,  however, 
as  constituting  "natural  liberty,"  that  is,  the  "power 
of  acting  as  one  thinks  fit";  and  as  being  a  "wild 
and  savage  liberty"  such  as  every  reflecting  man  seeks 
to  get  rid  of  by  entering  society.  This  explanation 
gives  the  surprising  result  that  while  the  chief  aim  of 
society  is  to  protect  men's  natural  rights,  the  aim  of 
men  in  entering  society  is  to  get  rid  of  those  rights. 
There  appears  in  Blackstone 's  exposition  also  a  plain 
implication  of  a  pre-social  and  savage  state  of  nature, 
which  he  elsewhere  rejects  as  a  wild  and  impious 
idea. 

Such  ramshackle  logic  pervades  all  Blackstone's 
preliminary  philosophy.  Yet  there  emerges  from  the 
incoherence  now  and  then  a  suggestive  and  forceful 
formula  destined  to  a  useful  career.  Such,  for  example, 
is  his  definition  of  civil  liberty,^  namely,  "natural 
liberty  so  far  restrained  by  human  laws  (and  no  farther) 
as  is  necessary  and  ex-pedient  for  the  general  advantage 
of  the  pubHc."  ^  The  content  of  this  liberty  in  Eng- 
land, where  it  attains  substantial  perfection,  is  in- 
dicated by  Blackstone  in  the  familiar  phrase,  personal 
security,  personal  hberty  and  private  property.  What 
the  precise  relation  of  these  rights  is  to  the  state  of 

*  Commentaries,  book  i,  chap.  i. 

*  He  calls  it  "political  or  civil." 

*  Commentaries,  book  i,  chap.  i. 


76  POLITICAL  THEORIES 

nature  or  to  the  irresistible,  absolute  and  uncontrolled 
sovereign  law-maker,  does  not  clearly  appear.  The 
subject  is  entangled  in  an  appalling  jumble  of  inco- 
herencies  concerning  sovereignty.  Having  declared 
that  term  convertible  with  "legislature,"  ^  and  fun- 
damental in  any  conception  of  a  state,  Blackstone 
gravely  proceeded  to  demonstrate  the  right  and  the 
duty  of  the  sovereign,  that  is,  the  legislature,  to  legis- 
late. This  absurd  proceeding,  analogous  to  proving 
the  right  and  duty  of  a  man  to  be  a  man,  had  importance 
iu  serious  political  philosophy  only  through  the  scorch- 
ing criticism  that  it  received  from  Jeremy  Bentham 
in  his  Fragment  on  Government} 

Another  panegyric  of  the  English  constitution, 
nearly  contemporary  with  that  of  Blackstone,  supple- 
mented on  the  Continent  the  influence  of  Montes- 
quieu's ideas  and  became  in  Great  Britain  itself  a  power 
for  the  promotion  of  the  national  self-satisfaction. 
De  Lolme,  a  native  of  Geneva,  published  the  original 
French  version  of  his  Constitution  of  England  in  Holland 
in  1770,  and  five  years  later  the  English  translation. 
In  this  treatise  the  excellencies  of  the  English  system 
were  found  at  just  the  points  indicated  by  Montes- 
quieu and  Blackstone  —  the  separation  of  powers,  the 
check  and  balance  among  the  various  branches  of  the 
legislature,  the  representative  system,  the  jury  and  the 
writ  of  habeas  corpus.  While  De  Lolme  was  rather 
more  discriminating  in  his  eulogies,  and  gave  more 
attention  to  some  of  the  qualifications  with  which  the 
theoretical  advantages  must  be  judged,  yet  in  the 

1  Commentaries  (1800) ,  Vol.  I,  p.  46.  « Infra,  p.  214. 


LIBERTY   AND   DIRECT    LEGISLATION  77 

general  summing  up  he  found  the  best  guarantees  of 
liberty  in  the  constitution  of  England. 

The  acuteness  of  De  Lolme's  analysis  is  well  illus- 
trated by  his  discussion  of  the  question  whether  liberty 
is  guaranteed  through  direct  popular  legislation.^ 
Liberty,  he  declares,  consists  simply  in  this:  "That 
every  man,  while  he  respects  the  persons  of  others 
and  allows  them  quietly  to  enjoy  the  products  of  their 
industry,  be  certain  himself  likewise  to  enjoy  the 
products  of  his  own  industry,  and  that  his  person  be 
also  secure."  In  other  words:  "To  live  in  a  state 
where  the  laws  are  equal  for  all  and  sure  to  be  exe- 
cuted (whatever  may  be  the  means  by  which  these 
advantages  are  attained),  is  to  be  free."  Thus  con- 
ceived, individual  liberty  is  not  assured  by  the  privilege 
of  voting  on  a  project  of  law,  or  indeed  on  the  choice 
of  a  representative.  The  "silent,  powerful  and  ever- 
active  conspiracy  of  those  who  govern"  cannot  be 
greatly  affected  by  the  Unorganized  and  unintelligent 
suffrages  of  the  multitude.  What  passes  for  the  will  of 
the  people  is  really  the  will  of  the  politicians  and  the 
great  interests.  They  wake  while  the  people  sleep ; 
and  they  alone  know  the  times  and  methods  for  gain- 
ing their  ends  regardless  of  the  public  welfare.  Through 
their  manipulation  popular  voting  becomes  a  mere 
agency  for  the  prosecution  of  their  projects.  As  com- 
pared with  the  results  of  such  legislation,  the  advantage 
of  the  public  would  be  better  promoted  if  laws  "were 
to  be  made  by  drawing  lots  or  casting  dice."  ^ 

*  Constitution  of  England,  book  ii,  chap.  v. 

*  Constitution  of  England,  p.  177. 


78  POLITICAL  THEORIES 

This  vigorous  polemic  against  Rousseau's  doctrine 
is  wholly  characteristic  of  De  Lolme's  philosophy,  and 
reveals  with  distinctness  his  fundamental  sympathy 
with  the  view  that  the  way  to  true  liberty  lies  rather 
through  a  happily  contrived  practical  correlation  of 
governmental  organs  than  through  devotion  to  a  meta- 
physical ideal. 

The  most  comprehensive  attempt  in  these  pre- 
revolutionary  decades  to  apply  the  general  spirit  and 
method  of  Montesquieu  to  the  requirements  of  social 
and  political  reform  is  to  be  found  in  the  work  of  the 
Neapolitan  Filangieri;  The  Science  of  Legislation,  that 
appeared  in  1780.  It  may  readily  be  conceded  — 
what  Janet  and  other  French  critics  have  laboriously 
striven  to  prove  ^  —  that  Filangieri  owed  most  of  his 
leading  doctrines  to  Montesquieu.  Yet  the  Italian 
developed  and  applied  them  in  a  new  spirit.  He  was 
very  sensitive  to  the  intellectual  influences  making  for 
far-reaching  reform.  In  his  enthusiasm  he  conceived 
that  the  human  mind  had  reached  a  stage  in  its  grasp 
of  social  phenomena  that  warranted  a  definitive  code 
of  laws  covering  all  the  larger  aspects  of  politics  and 
government.  As  Montesquieu  had  revealed  the  spirit 
of  the  laws,  Filangieri  would  set  forth  the  specific 
content  of  the  laws,^  as  reason  and  experience  dictated. 
Mankind;  at  least  in  Western  Europe,  had  reached,  he 
believed,  a  condition  of  permanent  peace  and  sta- 
bility.    The  wars,  conquests,  ambitions  and  downfall 

'  See  Janet,  Histoire  de  la  Science  Politique,  II,  529,  citing 
Villemain. 

2  "  Montesquieu  cerca  in  questi  rapporti  lo  spirito  delle  leggi, 
ed  io  vi  cerco  le  regole."     Scienza  delta  Legislazione,  Vol.  I,  p.  17. 


AN   OPTIMISTIC  PHILOSOPHER  79 

of  strong  men  would  no  longer  vex  the  race  and  shape 
its  institutions.^  Industry,  commerce  and  the  arts, 
once  a  source  of  weakness  to  a  nation  ("perhaps 
rendering  Tyre  the  prey  of  Alexander  and  Carthage 
that  of  Scipio"),  were  henceforth  to  be  the  chief 
supports  of  its  prosperity.  Liberty,  once  the  play- 
thing of  conquerors  and  their  rivals,  was  now  fixed  on 
generous  and  inspiring  foundations.  In  view  of  these 
happy  conditions  Filangieri  believed  the  time  ripe 
for  a  science  of  legislation  suited  to  the  fully-developed 
race. 

The  details  of  his  system  we  need  not  follow.  They 
were  but  the  familiar  ideals  of  contemporary  liberalism, 
illuminated,  however,  by  a  winning  optimism  and  en- 
thusiasm that  were  Filangieri's  own.  In  criminal 
jurisprudence  his  principles  were  those  of  Beccaria. 
In  economic  doctrine  he  reflected  the  ideas  of  the 
Physiocrats.  His  theory  of  the  nature  and  principles 
of  government  followed  Montesquieu  closely.  In 
respect  to  the  English  constitution,^  however,  his 
attitude  was  more  critical  than  that  of  Montesquieu 
and  Blackstone,  and  more  akin  to  that  of  De  Lolme. 
The  working  of  party  government  in  England  and  the 
revolt  of  the  Americans  caused  Filangieri  to  feel  that 
the  theoretical  merit  of  the  constitutional  system  was 
hardly  an  adequate  guarantee  of  practical  merit.  He 
thought  that  results  would  have  been  better  in  late 

*  "  II  tempo  della  f ondazione  e  del  rovesciamento  degl'  imperi  e 
passato ;  .  .  .  non  si  ritrova  piu  I'uomo  innanzi  al  quale  la  terra 
taceva."  Ibid.,  p.  23.  In  view  of  what  happened  in  the  three 
decades  beginning  with  1789,  this  is  an  interesting  prophecy. 

*  Scienza  della  Legislazione,  lib.  I,  cap.  xi. 


80  POLITICAL  THEORIES 

years  if  a  Locke  or  a  Penn  had  been  at  the  head  of 
the  government.-^  These  Enghshmen,  in  their  capacity 
as  lawgivers  for  colonies  in  America,  were  greatly  ad- 
mired by  the  Italian  philosopher.  Penn,  in  particular, 
was  glorified  as  the  virtuous  legislator  who  would 
have  overshadowed  the  fame  of  Lycurgus  and  Solon, 
if  he  had  been  bom  twenty  centuries  earlier,  and  who 
had  "made  Pennsylvania  the  fatherland  of  heroes,  the 
asylum  of  liberty  and  the  admiration  of  the  universe."  ^ 
Whatever  may  be  thought  of  the  soundness  of  this 
estimate,  the  fact  that  Filangieri  made  it  is  significant. 
It  illustrates  the  entrance  of  American  conditions  and 
institutions  as  an  influential  element  in  political  phi- 
losophy. The  winning  of  independence  by  the  colonies 
diverted  to  the  victors  some  of  the  interest  and  respect 
that  had  hitherto  been  concentrated  upon  the  con- 
stitution of  the  mother-comitr}^  In  the  search  for 
principles  adapted  to  political  liberty  the  American 
systems  were  studied  by  many  European  thinkers. 
It  was  appreciated  that  the  economic  and  social  con- 
ditions were  quite  different  on  the  two  sides  of  the 
Atlantic.    Filangieri,  in  a  strain  of  prophetic  eloquence, 

*  " .  .  .  se  aUa  testa  del  Govemo  Britannico  ci  fossero  stati  in 
questi  ultimi  tempi  un  Lock  (sic)  o  un  Pen  (sic)."  Sciema  delta 
Legislazione,  Vol.  I,  p.  64. 

p^  ^  Ibid.,  p.  148.  Filangieri's  particular  enthusiasm  for"PensiI- 
vania"  probably  reflects  contemporary  feeling  in  Paris,  where  the 
Mercure  de  France  said,  in  June,  1778:  "Les  legislateurs  de  la 
Pennsylvanie  doivent  etre  au  dessus  de  Lycurge  et  de  Solon  comme 
notre  siecle  est  au  dessus  de  celui  de  Solon  et  de  Lycurge."  Quoted 
in  Rosenthal,  America  and  France,  p.  68,  note.  Some  expressions 
of  Filangieri  suggest  that  he  may  have  supposed  Penn  to  be  the 
author  of  the  Pennsylvania  constitution  of  1777.  Montesquieu 
had  eulogized  Penn.     Esprit  des  Lois,  TV,  vi. 


THE    INFLUENCE   OF  AMERICA  81 

voiced  America's  defiance  of  Europe  based  on  the  po- 
tential wealth,  resources  and  character  of  the  new- 
born nation.^  Many  other  philosophers  saw  in  the 
simplicity  and  crudeness  of  American  life  a  semblance 
of  that  "nature"  from  which  Europe  had  gone  far 
astray,  and  to  which  it  must  return.  In  the  decade 
preceding  the  outbreak  of  revolution  in  France,  there- 
fore, America  was  much  studied  by  political  philosophers 
and  its  governmental  system  in  particular  was  analyzed 
with  care.  That  it  is  easy  to  exaggerate  the  influence 
of  this  study  on  the  course  of  events  and  of  theory 
in  France,  may  be  admitted.  But  it  would  be  an  even 
more  serious  error  to  neglect  this  influence.  Our 
account  of  the  trend  of  political  philosophy  at  the 
time  of  the  French  revolution  must  be  accompanied, 
therefore,  by  some  account  of  the  ideas  that  came  into 
prominence  through  the  revolution  in  America. 

SELECT  REFERENCES 

Blackstone,  Commentaries,  Introduction,  sec.ii;  Bk,  I,  chap.  i. 
Bluntschli,  Geschichte,  pp.  328-333  (Filangieri).  Dupont  de  Ne- 
mours, in  Physiocrates,  II,  pp.  335-366.  Ferguson,  Essay  on 
Civil  Society,  Part  I;  Part  III,  sees.  2,  3,  7.  Filangieri,  Scienza 
delta  Legislazione,  Vol.  I,  pp.  15-47.  Helvetius,  De  l' Esprit,  Essay  II, 
chaps,  xv-xvii ;  Essay  III,  chaps,  xvi-xxviii.  Higgs,  The  Physio- 
crats. Holbach,  Systeme  Social,  Part  I,  chap,  xvi ;  Part  II.  Janet, 
Histoire,  II,  pp.  478-508;  520-572;  635-682.  John  Morley, 
Miscellanies,  II,  pp.  111-162  (Turgot).  Sorel,  U Europe  et  la 
Revolution  Frangaise,  Vol.  I,  pp.  100-124.  Stephen,  EngUsh 
Thought  m  the  Eighteenth  Century,  II,  pp.  209-217;  305-328. 
TocqueviUe,  L'Ancien  Regime,  liv.  iii,  chaps,  i-iii. 

*  Scienza  delta  Legislazione,  I,  p.  163  et  seq. 


CHAPTER  III 

THE  AMERICAN  AND  THE   FRENCH  REVOLUTION 

1.  General  Trend  of  Events 

The  question  of  property  and  taxation,  the  tradi- 
tional source  of  political  agitation  in  England,  kindled 
in  America  the  flame  of  revolution  that  was  destined 
to  sweep  over  the  whole  civilized  world.  A  priori  the 
Stamp  Act  of  1765  was  a  fair  and  reasonable  measure 
of  policy.  Its  mischievous  bearings  were  at  first  un- 
perceived  by  many  experienced  politicians  on  both 
sides  of  the  ocean.  To  the  British  leaders  the  omnipo- 
tence of  Parliament  was  the  sole  principle  upon  which 
the  unity  of  the  vast  empire  could  be  securely  es- 
tablished. The  suspicious  and  high-spirited  Americans 
were  quick  to  discover,  however,  that  the  omnipotence 
of  Parliament  meant  in  this  particular  aspect  the  riglit 
of  the  English  aristocracy  to  divest  the  colonists  of 
their  property  at  will.  It  meant  taxation  without  rep- 
resentation. That  such  a  principle  was  in  the  English 
constitution,  the  Americans  would  not  believe.  The 
liberties  traditionally  insured  by  that  body  of  law  were 
as  highly  revered  a  heritage  in  Massachusetts  and 
Virginia  as  in  England  itself.  Hence  the  colonists 
joined  issue  first  in  a  hot  constitutional  and  legal  de- 
bate.   Against   the   pretensions   of   Parliament   they 

82 


AMERICAN  RIGHTS  ASSERTED  83 

appealed  to  the  king,  to  theii'  charters,  to  the  long  recog- 
nition of  their  autonomy  in  taxation,  and  to  their  rights 
as  EngHshmen.  Behind  all  this  appeared  now  and 
again,  even  from  the  outset,  the  ominous  reference  to 
the  natural  rights  of  men. 

In  this  initial  phase  of  the  controversy  the  practical 
victory,  as  well  as  a  pretty  clear  triumph  in  the  argu- 
ment, fell  to  the  colonists.  The  English  government 
did  not,  however,  relinquish  its  claims  or  its  purpose. 
By  taxes  laid  upon  imports  rather  than  upon  internal 
business  Parliament  flanked  the  strongest  legal  position 
of  the  colonists  and  obliged  them  to  sustain  even 
more  openly  the  doctrine  that  not  even  revenue  for 
clearly  imperial  purposes  could  be  raised  in  America 
save  through  the  colonial  assemblies.  For  this  doctrine 
support  had  to  be  sought  more  and  more  in  the  law  and 
rights  of  nature  rather  than  in  English  law.  For  all 
the  principles  and  precedents  of  legislation  touching 
trade  and  navigation  contradicted  point-blank  the  idea 
that  acts  of  Parliament  were  subject  to  any  restriction 
whatever. 

Finally,  for  the  purpose  of  enforcing  its  laws  against 
the  increasingly  violent  opposition  in  America  the  British 
government  resorted  to  the  despatch  of  several  bodies 
of  troops  to  the  colonies,  and  enacted  very  stringent 
laws  for  the  enforcement  of  its  trade  and  revenue  acts. 
In  opposing  these  last  measures  and  denying  their 
validity  the  Americans  had  to  take  the  ground  that 
without  representation  legislation  in  general,  no  less 
than  taxation,  was  tyranny.  At  the  same  time  no 
demand  was  made  for  delegates  to  the  Parliament  at 


84  POLITICAL  THEORIES 

Westminster,  but  through  concerted  action  among  the 
various  colonies  measures  of  hostihty  to  both  royal 
and  Parliamentary  authority  were  devised.  The  de- 
bate now  showed  small  attention  to  constitutional  and 
legal  questions,  but  was  animated  chiefly  by  a  spirit 
of  resistance  to  oppression.  Nature  rather  than  the 
English  constitution  became  the  great  tribunal  of 
appeal.  For  union  as  an  expedient  in  sustaining  legal 
rights  was  substituted  the  profounder  conception  of  an 
inherent  national  unity.  A  Continental  Congress  de- 
vising policies  of  common  defence  and  general  welfare 
gave  very  concrete  expression  to  this  idea.  To  the 
dogged  royal  self-consciousness  of  George  III,  as  well 
as  to  the  legalistic  spirit  of  many  broader-minded  Eng- 
lishmen, the  attitude  of  the  Americans  was  simply 
rebellion,  to  be  crushed  by  force.  Force  was  applied ; 
but  it  encountered  a  spirit  no  less  dogged  and  tenacious 
than  the  king's  own,  and  the  event  was  the  disruption 
of  the  British  empire  and  the  independence  of  the 
United  States. 

The  course  of  events  in  America  was  followed  from 
the  outset  with  close  attention  by  the  thinking  men  of 
continental  Europe,  especially  in  France.  Practical 
statesmen  were  moved  chiefly  by  a  malicious  joy  in 
contemplating  and  multiplying  the  troubles  of  the 
British  government.  Philosophers,  on  the  other  hand, 
found  in  the  work  of  the  Americans,  both  destructive 
and  constructive,  abundant  food  for  speculation.  To 
a  generation  permeated  by  the  feeling  that  a  radical 
reform  of  political  and  social  institutions  on  purely 
rational  lines  was  sorely  needed,  the  revolution  in 


FRENCH  AID   TO  AMERICA  85 

America  appeared  as  a  practical  realization  of  the  idea. 
A  primitive  people,  unspoiled  by  the  vices  of  civiliza- 
tion and  near  to  the  simplicity  and  purity  of  nature,  had 
deliberately,  on  ground  of  natural  right,  cast  aside  one 
government,  and  with  like  deliberation  and  like  respect 
for  the  light  of  nature  and  pure  reason,  had  installed 
for  themselves  another.  Such  tended  to  be  the  inter- 
pretation put  by  French  philosophy  on  the  events  in 
America.  It  was  confirmed  by  the  very  remarkable 
series  of  state  papers  in  which  the  principles  of  the 
revolution  were  formulated  as  well  as  by  the  constitu- 
tions that  embodied  the  details  of  the  new  political 
order.  The  representatives  who  were  sent  to  care  for 
American  interests  in  France  contributed  much  also 
to  support  the  current  views  about  the  revolution. 
Franklin,  John  Adams  and  later  Jefferson,  warmly 
welcomed  by  the  intellectual  leaders  of  France,  all 
shrewdly  kept  their  republican  simplicity  well  to  the 
front,  while  holding  their  own  in  all  forms  of  philosophi- 
cal discussion.  Thus  the  natural  man,  as  exemplified 
by  these  presumably  typical  Americans,  exhibited 
precisely  the  traits  that  respectable  philosophy  (though 
not  the  Rousseauish  school)  demanded. 

The  French  government,  in  1778,  formally  took  up 
the  cause  of  the  Americans,  and  its  aid  was  very  in- 
fluential, if  not  absolutely  decisive,  in  bringing  the  war 
to  a  successful  conclusion.  France  had  thus  effectively 
avenged  the  humiliation  that  Great  Britain  had  put 
upon  her  in  the  Seven  Years'  War.  Such  was  the  re- 
flection that  gave  comfort  to  the  French  king  and  his 
advisers.    It  was,  according  to  the  traditional  stand- 


86  POLITICAL  THEORIES 

ards,  a  most  satisfactory  reflection.  But  events 
tended  speedily  to  moderate  the  complacency  of  the 
court.  Assisting  the  Americans  and  humbling  Great 
Britain  had  been  very  expensive  and  the  long  impending 
bankruptcy  of  the  royal  treasury  began  to  seem  very- 
near.  The  attention  of  the  government  was  therefore 
diverted  from  its  triumphs  abroad  to  its  perils  at  home. 

Louis  XVI  had  assumed  the  crown  in  1774.  He  was 
as  far  as  possible  from  the  stuff  of  which  an  absolute 
monarch  should  be  made.  His  natural  endowments 
would  have  qualified  him  for  the  career  of  a  mechanic, 
but  would  hardly  have  guaranteed  him  a  good  living 
from  the  wages  he  could  earn.  He  was  temperamen- 
tally good-natured,  and  intellectually  dull.  At  his 
accession  he  manifested  sympathy  with  the  reforming 
philosophy  that  was  current,  and  summoned  Turgot 
to  take  charge  of  the  finances.  The  projects  of  this 
eminent  minister  were  far-reaching  and  might  have  been 
efficacious ;  but  they  trenched  on  the  privileges  of  the 
nobility  and  clergy  and  on  the  interests  of  powerful 
industrial  corporations,  and  the  king  was  influenced  to 
dismiss  him.  Necker,  an  experienced  and  successful 
banker,  took  up  the  task  of  fiscal  administration,  but 
abandoned  it  in  1781  when  the  effect  of  the  intervention 
in  America  rendered  his  plans  hopeless.  A  series  of 
little  politicians  of  the  old  school  earned  business 
along  with  no  effort  at  reform  till  the  insolvency  of  the 
treasury  became  a  fact. 

The  ultimate  causes  of  this  disastrous  situation  lay 
deep  in  the  outworn  economic  and  administrative 
conditions  of  the  old  regime.    Most  conspicuous  of  the 


FRENCH  AGITATION   FOR   REFORM  87 

obstacles  to  all  serious  projects  of  reform  was  the  re- 
sistance of  the  nobles  and  clergy  to  any  infringement  of 
their  ancient  privileges  under  which  they  were  exempt 
from  many  taxes.  The  discussion  of  the  royal  finances 
accordingly  shaped  itself  into  a  struggle  between  the 
privileged  classes  and  the  common  people.  It  gave 
fresh  fuel  to  the  smouldering  discontent  that  was 
kindled  by  other  causes.  The  literary  and  intellectual 
classes,  the  men  of  professions  and  of  business  and  the 
great  mass  of  peasants,  all  had  their  grievances  against 
the  aristocracy,  and  all  were  stirred  to  air  them  by  the 
struggle  over  taxation.  Political  agitation  and  debate 
of  a  scope  and  intensity  unknown  to  France  since  the 
sixteenth  century  developed  throughout  the  land  as 
the  successive  ministers  failed  to  relieve  the  embarrass- 
ments of  the  government.  There  was  in  this  agitation 
little  hostility  to  the  person  or  office  of  the  king.  Louis 
XVI  was  regarded  as  a  benevolent  i-uler,  anxious  to  do 
what  was  best  for  France,  but  prevented  by  the  malign 
influence  of  his  court  from  seeing  the  true  way.  All 
manner  of  schemes  were  proposed  by  which  the  wishes 
of  the  French  nation,  rather  than  those  of  the  old  ruling 
clique,  should  have  an  effective  place  in  the  counsels 
of  the  monarch.  By  the  "French  nation"  and  the 
"French  people"  was  meant,  of  course,  the  commons, 
bourgeoisie  or  Third  Estate.  The  demand  was,  in 
short,  for  some  modification  of  the  absolute  monarchy 
in  the  sense  of  popular  government. 

The  strength  and  volume  of  the  agitation  tended 
steadily  to  paralyze  all  the  activities  of  the  adminis- 
tration.   After  a  futile  attempt  to  solve  the  problem 


88  POLITICAL   THEORIES 

by  an  Assembly  of  Notables,  which  served  only  to  ex- 
hibit again  the  blind  obstinacy  of  the  privileged  classes, 
the  king  resorted  to  the  Estates  General  —  the  long- 
disused  organ  of  old-time  communication  between  the 
crown  and  all  classes  of  its  subjects.  This  body  met 
May  5,  1789,  and  within  six  weeks  revolution  in  France 
was  an  accomplished  fact.  From  the  outset  the  repre- 
sentatives of  the  Third  Estate  disregarded  the  character 
which  ancient  law  and  custom  gave  to  the  Estates 
General.  They  refused  to  recognize  the  royal  command 
that  the  three  orders  —  clergy,  nobility  and  commons  — 
should  deliberate  and  vote  separate  from  one  another. 
They  proclaimed  themselves,  Jmie  17th,  a  "national 
assembly,"  empowered  to  interpret  and  express  the 
general  wdll  of  the  nation,  irrespective  of  any  veto  by 
the  king.  Three  days  later,  in  the  famous  oath  of  the 
tennis  court,  they  swore  that  they  would  never  separate 
till  they  had  performed  the  duty  to  which  they  believed 
themselves  called,  namely,  "to  determine  {fixer)  the 
constitution  of  the  kingdom,  effect  the  reformation  of 
the  public  order,  and  maintain  the  true  principles  of  the 
monarchy. "  ^ 

With  this  action  of  the  assembly  the  old  order  m 
France  passed  away.^  To  the  assumption  of  supreme 
power  in  the  state  by  this  body,  lacking  though  it  did 
all  sanction  in  law,  the  king  did  not  —  doubtless  could 
not  —  oppose  any  serious  resistance.  Of  the  privileged 
classes  the  same  was  true.    A  considerable  number  of 


1  Helie,  Constitutions  de  la  France,  I,  p.  22. 

2  C/.  Robinson,  "The  Oath  of  the  Tennis  Court,"  in  Political 
Science  Quarterly,  X,  460. 


FROM   CONSTITUENT  TO  CONVENTION  89 

the  representatives  of  the  nobihty  and  a  clear  majority 
of  those  of  the  clergy  joined  voluntarily  with  the  as- 
sembly, which  soon,  with  full  recognition  by  the  king, 
settled  down  to  its  self-appointed  task.  The  "reforma- 
tion of  the  public  order"  was  effected  by  the  abolition 
of  privileges,  and  of  the  nobility  itself,  the  civil  consti- 
tution of  the  clergy,  and  the  whole  series  of  drastic 
decrees  in  the  spirit  of  liberty  and  equahty.  The  "con- 
stitution was  determined"  by  the  promulgation,  in 
September,  1791,  of  an  elaborate  document,  pre- 
ceded by  a  "Declaration  of  the  Rights  of  Man  and 
of  Citizen,"  and  embodying  in  its  provisions  the 
governmental  frame  of  a  limited  —  very  much  limited 
—  monarchy. 

Long  before  this  end  was  reached,  however,  the  revo- 
lutionary impulse,  penetrating  to  the  lowest  strata  of 
society,  had  produced  anarchic  conditions,  and  had 
strengthened  the  influence  of  the  most  radical  theorists 
and  agitators.  The  king's  assent  to  the  new  constitu- 
tion was  given  under  obvious  duress,  and  the  hapless 
monarch's  longing  to  escape  from  the  grasp  of  his 
loving  subjects  and  their  constitution  was  more  than 
suspected.  Brother  monarchs  undertook  to  rescue 
him,  and  under  the  added  strain  of  foreign  war  and 
invasion  the  vamited  constitution  collapsed  in  1792  as 
utterly  as  the  ancien  regime  in  1789.  A  National  Con- 
vention, summoned  with  some  color  of  legality,  assumed 
all  governmental  as  well  as  constituent  functions. 
The  king  was  deposed  and  executed,  monarchy  was 
abolished,  the  republic  proclaimed,  and  amid  the  hid- 
eous orgies  of  the  Terror  and  the  fantastic  experiments 


90  POLITICAL  THEORIES 

of  Girondists,  Jacobins  and  the  Directory  France  moved 
deliriously  back  to  order  under  the  "  enlightened  despot- 
ism" of  Napoleon  Bonaparte.-' 

It  was  a  much  mooted  question  prior  to  1789  — 
and  authorities  differ  on  it  to  the  present  day^  — 
whether  France  under  the  ancien  regime  had  a  constitu- 
tion. However  this  may  be  answered,  by  the  end  of  the 
Napoleonic  period  the  fundamental  public  law  of  the 
nation  had  been  so  often  and  so  variously  formulated 
and  proclaimed  as  to  make  it  certain  that  there  was  a 
constitution,  while  leaving  in  obscurity  at  any  given 
time  only  the  question  as  to  what  its  content  was. 
The  idea  that  some  formal  code,  making  intelligible  to 
all  men  the  organization  and  powers  of  government,  was 
indispensable  in  a  free  state,  survived  all  the  vicissi- 
tudes of  the  revolutionary  era  in  France,  and  was  car- 
ried into  all  the  lands  that  were  reached  by  French  in- 
fluence.^ The  wiitten  constitution  thus  became  one 
of  the  foremost  topics  in  the  theories  of  philosophers 
who  were  concerned  with  politics.  Questions  as  to 
the  true  source  and  sanction  of  its  provisions,  the  scope 
of  its  authority,  the  method  of  its  establishment  and 
amendment,  added  a  novel  element  to  political  theory. 
But  this  was  only  one  element.  The  heated  discus- 
sions of  this  agitated  period  embraced  every  aspect  of 
political  and  social  life,  and  solved  anew,  in  the  modes 
and  phrases  of  the  day,  the  problems  that  had  been 

^  Sorel,  UEurope  et  la  Revohition  Frangaise,  I,  p.  548. 

*  H^e,  writing  in  1875,  declared  roundly  that  France  had  a 
constitution  (Les  Constitutions  de  la  France,  I,  p.  3) ;  Sorel,  in 
1887,  held  the  contrary  (op.  cit.,  I,  189). 

*  Borgeaud,  Adoption  and  Amendment  of  Constitutions,  pp.  23^-55. 


AMERICAN   REVOLUTIONARY   DOGMAS  91 

solved  SO  often  in  other  modes  and  phrases  since  the 
dawn  of  man's  self-consciousness. 

2.  American  Ideas  and  Influence 

On  its  destructive  side  the  American  revolution  was 
sustained  almost  exclusively  by  dogmas  that  were 
familiar  and  undisputed  in  Great  Britain  in  the  middle 
of  the  eighteenth  century.  The  influential  men  among 
the  colonists  were  saturated  with  the  spirit  of  English 
political  literature  and  of  English  law.  The  postulates 
of  their  theories  of  government  were  those  that  were 
transmitted  in  the  history  of  the  revolutions  in  England 
during  the  seventeenth  century  and  in  the  writings  of 
Harrington,  Sydney,  Locke  and  the  lesser  and  later 
expounders  of  the  successful  system.  Among  the  ar- 
dent asserters  of  American  rights  during  the  time  of 
hottest  controversy  were  many  who  reproduced,  in 
manner  and  in  matter,  the  Levellers  of  the  previous 
century.^  The  effective  control  of  affairs  was  exercised, 
however,  by  men  of  relatively  conservative  spirit  and 
balanced  judgment,  and  the  convincing  evidence  of 
their  strength  and  poise  is  to  be  found  in  the  admirable 
state  papers  in  which  they  proclaimed  the  principles 
of  their  policies.  For  the  substance  of  the  political 
philosophy  of  the  American  Revolution  it  is  not 
necessary  to  look  beyond  the  Declaration  of  Indepen- 
dence and  the  earliest  constitutions,  state  and  federal. 
The  assemblies  in  which  these  documents  took  shape 
included  men  as  gifted  in  power  of  expression  as  in 
thought.     Jefferson,    Mason    and    John    Adams,    the 

*  Cf.  Political  Theories  from  Luther  to  Montesquieu,  pp.  236  et  seq. 


92  POLITICAL   THEORIES 

draughtsmen  respectively  of  the  Declaration  of  Inde- 
pendence, the  Virginia  Declaration  of  Rights  and  the 
Massachusetts  Constitution  of  1780,  all  blended  admir- 
ably m  their  phrasing  the  spirit  of  the  doctrines  inherited 
from  the  Old  World  with  the  spirit  that  was  peculiar 
to  the  New.  Probably,  however,  it  was  not  so  much 
the  specific  content  of  these  state  papers  as  the  mere 
fact  of  their  publication,  that  is  significant  in  the  history 
of  political  theoiy;  for  they  gave  the  impulse  to  the 
practice,  soon  to  become  universal,  of  justifying  revo- 
lution by  appealing  to  the  general  sentiment  of  mankind 
and  of  basing  government  on  a  written  code  of  public 
law. 

Summarily  stated  the  ideas  of  the  Americans  were 
these :  an  original,  pre-political  state  of  nature,  in 
which  men  are  free  and  equal ;  a  contractual  procedure 
by  which  the  free  and  equal  individuals  establish  govern- 
ment for  their  joint  and  several  welfare ;  a  body  of 
rights  in  ever}'  individual  secure  under  all  circum- 
stances from  denial  by  the  government ;  the  indefeasible 
sovereignty  of  the  people,  expressed  ultimately  in  the 
right  of  revolution ;  the  restriction  of  all  governmental 
organs  by  reciprocal  checks  and  balances  and  by  the 
careful  prescriptions  of  a  written  constitution. 

The  state  of  nature,  as  conceived  by  the  Americans, 
was  that  of  Locke,  and  had  in  it  no  suggestion  of  Rous- 
seau's "hon  sauvage.^'  It  was  very  like  Braintree, 
Massachusetts,  or  Westmoreland  Coimty,  Virginia, 
when  politics  was  dull.  The  natural  man  was  the 
decent,  well-to-do  farmer  or  townsman,  respecting  his 
neighbors,  respected  by  them,  gladly  concerting  with 


THE   AMERICAN   SOCIAL   COMPACT  93 

them  projects  for  peace  and  comfort,  but  suspicious 
and  resentful  toward  regulations  transmitted  from  any 
remote  source.  Whatever  authority  was  necessary 
must  spring  naturally  and  simply  from  "the  people," 
as  constituted  by  the  social  compact.  This  familiar 
concept  had  in  America  the  same  variety  and  vague- 
ness of  meaning  that  it  had  elsewhere.  Most  explicit 
was  the  definition  in  the  preamble  to  the  constitution 
of  Massachusetts : 

The  body-politic  is  formed  by  a  voluntary  association  of 
individuals :  it  is  a  social  compact  by  which  the  whole  people 
covenants  with  each  citizen  and  each  citizen  with  the  whole 
people  that  all  shall  be  governed  by  certain  laws  for  the 
common  good.* 

The  thought  here  obviously  is  that  only  political 
association  is  formed  by  the  contract.  In  the  Virginia 
Declaration  of  PJghts,  on  the  other  hand,  "men  ,  .  . 
by  nature  equally  free  and  independent"  appear  to 
"enter  into  a  state  of  society"  by  compact.  Despite 
variation  in  the  forms  of  expression,  however,  the 
general  feeling  of  the  American  Fathers  was,  as  Locke 
had  so  clearly  held,  that  political,  not  social,  organiza- 
tion was  the  subject-matter  of  the  contractual  pro- 
cedure. 

It  is  even  more  clear  that  the  natural  rights  of  indi- 
viduals survived  the  compact  and  were  guaranteed  by 
it.  Jefferson's  famous  phrase  in  the  Declaration  of 
Independence,  that  men  are  "endowed  by  their  Creator 
with  certain  unalienable  rights,"  to  secure  which 
governments  are  instituted,  appears  substantially  in 

*  This  and  aU  following  quotations  from  American  documents  are 
taken  from  Poore's  collection  of  federal  and  state  constitutions. 


94  POLITICAL   THEORIES 

all  the  discussion  of  the  years  before  as  well  as  after 
1776.  Most  of  the  states  prefaced  their  early  consti- 
tutions with  "Declarations  of  Rights,"  in  which  an 
enumeration  of  these  unalienable,  inherent  natural 
rights  was  imdertaken,  together  often  with  the  principles 
and  institutions  of  government  deemed  essential  to 
secure  them.  These  lists  show  clearly  the  advance  in 
the  conception  of  liberty  since  the  revolutions  of  the 
seventeenth  century. 

In  the  Declaration  of  Independence  the  imalienable 
rights  were  summed  up  in  a  variant  of  a  centuries-old 
formula  of  English  law  and  agitation/  "life,  liberty  and 
the  pursuit  of  happiness."  More  specific  reference  to 
property  appeared  in  the  state  Declarations.  Vir- 
ginia's included  among  the  inherent  rights  "the  means 
of  acquiring  and  possessing  property"  and  Massachu- 
setts employed  substantially  the  same  words.  The 
two  rights  for  which  the  English  Independents  had 
struggled^  received  now  most  explicit  recognition — ■ 
freedom  of  worship  and  freedom  of  expression.  In  the 
same  category  of  indestructible  rights  were  incorporated 
the  familiar  ingredients  of  English  judicial  process  — 
arrest  by  warrant,  detention  for  cause  shown  and  trial 
by  jury.  The  democratic  spirit  of  the  Americans  gave 
now  the  character  of  law  to  the  principle  for  which  the 
extremists  of  the  Puritan  Revolution  had  striven  in 
vain  —  equality  among  citizens.  The  Virginia  Decla- 
ration expressed  the  doctrine  thus : 

^  Political  Theories  from  Luther  to  Montesquieu,  Index  sub  voc. 
"Natural  Rights." 

*  Ibid.,  p.  245,  et  passim. 


NATURAL   RIGHTS   IN   AMERICA  95 

That  no  man,  or  set  of  men,  are  entitled  to  exclusive  or 
separate  emoluments  or  privileges  from  the  community,  but 
in  consideration  of  public  services ;  which,  not  being  descend- 
ible, neither  ought  the  offices  of  magistrate,  legislator  or 
judge  to  be  hereditary. 

And  with  this  extinction  of  privilege  was  united  the 
ascription  of  the  right  to  vote  and  hold  office  to  every 
man  "having  sufficient  evidence  of  permanent  common 
interest  with,  and  attachment  to,  the  community."^ 
Other  additions  to  the  list  of  natural  rights  were  of  less 
immediate  significance,  though  destined  to  a  distin- 
guished future.  Thus  Massachusetts  included  the  right 
of  reunion  —  to  assemble  and  consult  upon  the  common 
good ;  and  Pennsylvania  proclaimed  the  inherent  right 
to  emigrate  from  one  state  to  another,  or  "to  form  a  new 
state  in  vacant  countries."  While  there  were  varia- 
tions among  the  states  in  some  of  these  minor  points, 
there  was  uniformity  and  uncompromising  clearness  in 
announcing  the  sovereignty  of  the  people  and  the  right 
of  cashiering  governments.  The  Declaration  of  In- 
dependence naturally  made  this  doctrine  particularly 
conspicuous.  Governments,  it  affirmed,  are  instituted 
to  secure  the  unalienable  rights  of  men ;  their  powers 
are  derived  from  the  consent  of  the  governed;  and 
when  any  form  of  government  becomes  destructive 
of  the  ends  for  which  it  was  established,  "it  is  the  right 
of  the  people  to  alter  or  abolish  it  and  to  institute  new 
government,"  based  on  such  principles  as  seem  best 

1  Virginia  Declaration  of  Rights,  vi.  The  Massachusetts  Dec- 
laration was  less  explicit,  assuring  the  suffrage  and  eligibility  to  all 
inhabitants  "  having  such  qualifications  as  they  shall  establish  by 
their  frame  of  government." 


96  POLITICAL  THEORIES 

adapted  to  effect  their  safety  and  happiness.  The  state 
Declarations  of  Rights  were  no  less  explicit.  Virginia 
assigned  to  "a  majority  of  the  community"  the  ''in- 
dubitable, unalienable  and  indefeasible  right  to  reform, 
alter,  or  abolish"  an  inadequate  or  offending  govern- 
ment ;  and  Massachusetts  characterized  this  right  "  of 
the  people"  as  "incontestable,  mialienable  and  inde- 
feasible." 

As  to  the  principles  and  powers  through  which  govern- 
ments could  best  realize  their  true  end,  the  promotion  of 
the  general  weal,  there  was  naturally  much  diversity 
among  the  various  states,  as  revealed  in  their  respective 
constitutions.  A  study  of  these  documents  furnishes, 
however,  a  few  doctrines  that  sum  up  the  theory  of  the 
time  on  this  subject.^  The  powers  delegated  to  the 
government  should  be  narrowly  restricted ;  they  should 
be  divided  among  the  legislative,  executive  and  judicial 
departments  in  such  manner  as  to  insure  the  checking 
of  each  by  the  others ;  executive  and  legislative  func- 
tionaries at  least  should  all  be  elective  and  for  short 
terms,  in  order  that  abuse  of  power  might  be  promptly 
corrected  by  the  people.  These  were  obviously  the 
doctrines  of  a  democracy  in  government  as  well  as  in 
sovereignty.  They  sprang  less  from  the  long  traditions 
of  speculative  philosophy  than  from  the  practical  condi- 
tions of  life  and  administration  in  the  colonies.  The 
interesting  fact,  from  our  point  of  view,  is  that  the 
Americans  were  the  first  people  in  history  to  frame 
consciously  and  deliberately  a  system  of  government  in 

*  Memam's  treatment  of  the  topic  is  excellent.     Op.  cit.,  pp. 
74  et  seq. 


ONE   PEOPLE    OR   THIRTEEN?  97 

which  leading  dogmas  of  philosophy  received  the  form 
and  sanction  of  law. 

On  one  fundamental  question  the  formal  pronounce- 
ments of  the  Americans  were  hardly  more  coherent  and 
logical  than  the  multitude  of  democratic  theories  that 
had  preceded  them.  They  furnished  no  precise  con- 
ception of  "the  people"  or  "a  people."  The  term  was 
used  indiscriminately  in  the  collective  and  in  the  dis- 
tributive sense.  No  criterion  was  afforded  by  which 
the  possessor  of  sovereignty  or  of  rights  could  be  identi- 
fied. It  was  made  clear  by  the  Declaration  of  Inde- 
pendence that  those  in  whose  name  it  was  published 
conceived  themselves  as  a  distinct  people  so  far  as  con- 
cerned all  other  communities  of  men.  The  occasion  of 
the  document  was  that  it  had  become  "necessary  for 
one  people  to  dissolve  the  political  bands  which  have 
connected  them  with  another  and  to  assume  among  the 
powers  of  the  earth  the  separate  and  equal  station  to 
which  the  laws  of  nature  and  of  nature's  God  entitle 
them."  These  glowing  and  exalted  phrases  of  Jeffer- 
son expressed  a  conception  of  "people"  that  was  rarely 
discernible  in  the  early  state  or  federal  constitutions. 
In  these  the  unity  and  solidarity  made  so  conspicuous 
in  the  Declaration  disappeared  and  thirteen  peoples 
were  displayed  instead  of  one.  The  "original,  explicit 
and  soleimi  compact"  on  which  the  constitution  of 
Massachusetts  was  based,  united  the  people  of  that 
state,  not  the  American  people  ;  and  the  "sovereignty, 
freedom  and  independence"  that  inhered  by  nature  in 
every  people  were  declared  by  the  Articles  of  Confed- 
eration to  belong  to  each  of  the  thirteen  states.    In  fine, 


98  POLITICAL  THEORIES 

the  democratic  theory  of  America  iii  the  eighteenth 
century,  somewhat  hke  that  of  the  Dutch  and  the 
French  in  the  sixteenth  and  seventeenth,  was  permeated 
with  the  idea  that  a  sovereign  people  of  any  consider- 
able size  must  be  a  group  of  groups  rather  than  a  group 
of  individuals.^ 

In  the  primary  group,  however,  the  particular  com- 
monwealth, the  Americans  manifested  in  one  respect 
a  very  great  clarity  of  democratic  analysis.  The 
framing  of  their  constitutions  they  insisted  should  be 
the  particular  function  of  a  special  organ,  distinct  from 
the  government  and  immediately  representative  of  the 
people.  Thus  the  constitutional  convention  came  into 
the  field  of  law  and  of  philosophy.  Where  circum- 
stances prevented  the  assembling  of  a  special  delegate 
body  for  the  making  of  the  constitution,  a  draught 
was  prepared  by  the  legislature,  but  was  not  recognized 
as  in  force  until  formally  ratified  by  the  people.  The 
first  constitution  of  Massachusetts  was  rejected  at  the 
polls  for  the  reason,  among  others,  that  it  had  been 
framed  by  the  legislature  rather  than  by  a  special  con- 
vention.^ In  its  dread  of  oppression  by  government, 
even  when  the  officials  were  their  own  agents,  the  Ameri- 
can democracy  added  a  new  check  upon  its  power  by  the 
device  of  a  constituent  and  revising  assembly.  Thus  the 
written  constitution  was  made  an  expression  of  the  delib- 
erate popular  will  not  only  in  content  but  also  in  origin. 

The  political  pronoimcements  and  experiments  of 

^  Political  Theories  from  Luther  to  Montesquieu,  pp.  62-63,  78-79. 

^  Cf.  Gushing,  From  Provincial  to  Commonwealth  Government 
in  Massachusetts,  p.  193.  On  the  transition  in  general  see  Jameson, 
Const.  Convention,  ch.  iv,  sees,  126  et  seq. 


AMERICAN   IDEAS  ABROAD  99 

the  United  States  were  closely  studied  by  European 
philosophers,  especially  in  France  and  England.  That 
the  republican  form  of  government  could  succeed  in 
so  extensive  a  territory  and  so  large  a  population,  was 
contradictory  of  a  dogma  of  political  theory  that  had 
become  almost  axiomatic.  The  devices  by  which  the 
Americans  sought  to  maintain  their  system  were  there- 
fore closely  scrutinized.  A  collection  of  the  state  con- 
stitutions was  published  by  order  of  Congress  in  1781, 
and  was  through  Franklin's  influence  soon  translated 
into  French.^  That  it  contributed  something  to  the 
flood  of  revolutionary  doctrine  then  rising  in  France 
cannot  be  doubted.^  Turgot,  Mably  and  Condorcet 
all  made  the  American  system  the  subject  of  more  or 
less  elaborate  criticism  and  commentary.  Their  stric- 
tures evoked  the  works  ^  in  which  John  Adams'  spirit 
and  learning  were  revealed  to  the  intellectual  world. 
As  events  moved  on  to  the  cataclysm  of  1789  the  Ameri- 
can influence  blended  indistinguishably  in  the  general 
agitation  for  political  reform.  That  a  new  constitution 
for  the  United  States  had  to  be  framed  in  1787  was  a 
fact  not  lost  sight  of  by  the  French  and  English  theo- 
rists, and  the  work  of  the  Philadelphia  convention,  with 
the  splendid  sagacity  of  its  exposition  and  defence  in 
the  Federalist,  were  familiar  to  many  of  the  busy  spirits 
that  promoted  the  assembling  of  the  Estates  General. 

^  A  French  translation  of  the  state  constitutions,  dedicated  to 
Franklin,  was  published  in  Switzerland  as  early  as  1778.  Jellinek, 
Declaration  of  Rights,  p.  18. 

*  For  the  evidence  see  Rosenthal,  France  and  America,  passim. 
Cf.  Scherger,  Evolution  of  Modern  Liberty,  chap.  x. 

*  Defence  of  the  Constitutions  .  .  .  of  the  United  States  (1787- 
88)  and  Discourses  on  Davila  (1790).     Cf.  Merriam,  op.  cit.,  p.  123. 


100  POLITICAL   THEORIES 

3.  Si&yes 

When  we  recur  to  the  specific  theories  that  dominated 
the  earhest  practical  proceedings  of  the  French  Revolu- 
tion we  are  confronted  by  a  mass  of  material  that  defies 
analysis  in  the  scope  of  this  work.^  The  general  princi- 
ples we  have  already  seen  in  the  systems  treated  in  the 
preceding  chapters.  To  what  extent  the  reforming 
ideas  of  Montesquieu,  Rousseau,  les  philosophes,  the 
Physiocrats  and  the  great  foreign  thinkers  had  perme- 
ated the  French  spirit,  is  best  revealed  by  the  cahiers, 
in  which  the  electoral  districts  of  the  whole  kingdom 
formulated  their  grievances  and  suggestions  at  the  meet- 
ing of  the  Estates  General.  Along  with  the  complaints 
of  concrete  oppression,  inequality,  over-taxation  and 
maladministration  in  general,  these  cahiers  embody 
every  abstract  principle  of  politics  that  was  to  play  a 
part  in  the  coming  years.  Rights  of  man,  rights  of 
citizen,  social  contract,  popular  sovereignty,  with 
every  conceivable  dogma  as  to  origin,  end  and  form 
of  government  —  all  were  lq  the  cahiers,  an  impressive 
revelation  of  the  political  ferment  throughout  the 
nation.  In  addition  to  this  a  prodigious  mass  of  pam- 
phlets, brochures  and  more  pretentious  treatises  on 
current  topics  accompanied  every  phase  of  the  revolu- 
tionary movement.  Without  attempting  any  r6sum6 
of  this  we  will  consider  only  the  ideas  of  that  writer 
who  by  the  agreement  of  both  contemporaries  and 
historians  made  most  precisely  the  sparking  contact 

1  For  a  very  useful  bibliography  see  Robinson  and  Beard, 
Readings  in  Modern  European  History,  I,  403. 


THIRD   ESTATE   AND   NATION  101 

between  popular  feeling  and  literary  expression  at  the 
beginning  of  1789. 

The  famous  essay :  What  is  the  Third  Estate  ?  contains 
substantially  the  whole  of  the  Abbe  Sieyes'  theory  of 
the  state.  ^  It  was  written  as  a  contribution  to  the  hot 
debate  over  the  method  of  procedure  that  should  obtain 
in  the  approaching  Estates  General.  Its  author  claimed 
that  he  wrote  it  not  as  a  statesman  but  as  a  philosopher, 
concerned  with  propounding  the  truths  of  political 
science,  but  not  with  the  task  of  adapting  them  to  im- 
mediate practical  needs.  As  a  matter  of  fact  the  course 
of  events  by  which  the  Estates  General  was  trans- 
formed into  a  constituent  assembly  followed  exactly 
the  line  that  he  indicated. 

The  familiar  triad  of  questions  that  introduced  the 
plan  of  his  work  shows  sufficiently  its  general  trend : 
"What  is  the  Third  Estate?  Everything.  What  has 
it  been  hitherto  in  the  political  order  ?  Nothing.  What 
does  it  demand  ?  To  become  something  in  that  order." 
Much  of  his  fundamental  doctrine  turned  upon  the 
assault  on  the  privileged  classes  that  he  and  many  others 
had  previously  developed.^  Privilege,  he  argued,  is 
exemption  from  the  law ;  but  law  is  the  general  will  of 
the  nation ;  therefore  those  who  are  not  under  the  law 
are  not  in  the  nation.  The  unprivileged  —  the  third 
estate  —  embracing  nineteen-twentieths  of  the  popula- 
tion, satisfying  by  their  varied  toil  and  activity  all  the 
needs  of  social  life,  and  constituting  in  fact  the  real 

*  Qu'est-ce  que  le  Tiers  tUtat  ?  Precede  de  I'Essai  sur  les  Privileges. 
Paris,  1888. 

^  Cf.  his  Essai  sur  les  Privileges. 


102  POLITICAL  THEORIES 

strength  of  the  community,  has  in  itself  the  essentials 
of  a  complete  nation.^ 

To  settle  the  controversies  then  current  in  France 
Sieyes  contended  in  his  fifth  chapter  that  a  few  simple 
principles  of  pure  reason  would  serve  better  than  the 
delicate  and  complex  devices  of  great  statesmen.  Such 
principles  he  proceeded  to  set  forth.  They  were  the 
principles  of  Rousseau's  Contrat  Social,  with  the  ad- 
dition of  representative  government,  which  Rousseau 
repudiated.^  Individuals  will  to  unite  into  a  com- 
munity ;  ipso  facto  the  nation  exists.  A  general  will 
thereupon  takes  the  place  of  all  the  individual  wills. 
When  the  number  and  dispersion  of  the  individuals  be- 
come so  great  as  to  make  difficult  the  expression  of 
the  general  will,  that  part  of  the  national  will  and  power 
necessary  to  provide  for  public  needs  is  confided  to 
certain  of  the  people.  Such  is  the  origin  of  representa- 
tive government. 

The  organization  thus  instituted  is  limited  in  its 
powers.  Its  will  is  not  the  "real"  general  will  (volonte 
commune),  but  a  "representative  general  will."  The 
forms  and  laws  that  determine  how  the  government  shall 
fulfil  its  function  are  prescribed  by  the  nation  and, 
taken  as  a  whole,  they  make  up  the  constitution.  But 
this  is  the  constitution  of  the  government,  not  of  the 
nation.  "The  nation  is  before  everything;  it  is  the 
origin  of  everything.     Its  will  is  always  legal ;  it  is  the 

*  Note  the  menace  in  ohap.  iii :  "  On  ne  doit  point  se  le  dis- 
simuler ;  le  garant  de  la  liberte  publique  ne  pent  etre  que  la  oil  est 
la  force  reelle.  Nous  ne  pouvons  Stre  libres  qu'aveo  le  peuple  et  par 
lui."     Op.  cit,  p.  54. 

2  Supra,  p.  34. 


NATION   AND   CONSTITUTION  103 

law  itself."  On  this  point,  that  the  nation  is  above 
and  independent  of  the  constitution,  Sieyes  was  very 
strong  and  insistent.^  The  constitution  binds  the 
government,  and  any  contravention  of  constitutional 
prescriptions  by  the  ordinaiy  legislature  is  illegal  and 
void.  But  nothing  binds  the  nation.  It  makes  the 
constitution :  in  terms  that  at  once  became  fixed  m 
political  science  Sieyes  declared :  "The  constitution  is 
the  work  not  of  the  constituted  but  of  the  constituent 
power." '^  His  argument  largely  reproduced  that  of 
Rousseau  on  sovereignty.^  The  will  of  the  nation  can- 
not be  alienated  or  bomid ;  it  ought  not  to  be  alienated 
or  boimd.  It  is  like  any  other  will,  free  and  self-de- 
termined. No  particular  mode  need  be  followed. 
"In  whatever  way  a  nation  wills,  it  is  enough  that  it 
wills;  all  modes  are  good,  and  its  will  is  always  the 
supreme  law." 

But  if  the  mode  {maniere)  in  which  the  nation  wills 
is  a  matter  of  indifference,  the  same  is  not  true  of  the 
organ  through  which  the  supreme  national  power  is 
exercised.  There  is  but  a  single  body  conceivable 
that  is  capable  of  this  function,  when  circumstances 
render  it  impossible  for  all  the  individuals  forming  the 
nation  to  assemble.  This  body  is  an  assembly  of 
extraordinary  representatives  (representants  extraordi- 
naires)  to  which  the  nation  shall  have  intrusted  the 

1  The  point  had  a  great  importance  in  the  practical  problem  of 
the  time.  It  furnished  the  ground  on  which  the  Estates  General 
was  turned  into  a  constituent  body. 

*  "...  la  constitution  n'est  pas  I'ouvrage  du  pouvoir  constitu6 
mais  du  pouvoir  constituant." — P.  67. 

*Contrat  Social,  liv.  ii,  chaps,  i-iv.     Cf.  supra,  p.  22. 


104  POLITICAL  THEORIES 

authority.  Neither  the  ordinary  legislature  nor  any 
other  organ  of  the  government  is  qualified  to  determine 
what  is  the  constitution  —  to  make  it  or  to  mend  it. 
These  governmental  bodies  are  mere  creatures  of  the 
constitution,  circumscribed  by  its  provisions.  To 
make  a  constitution,  or  at  any  point  to  define  its  con- 
tent, is  the  task  of  a  representative  assembly  especially 
designated  for  the  purpose  by  the  nation. 

Such  is  Sieyes'  conception  of  a  national  constituent 
assembly.  It  signalizes  a  distinct  advance  in  the  theory 
of  popular  sovereignty.  We  have  seen  how  again  and 
again  in  the  history  of  this  theory  promising  systems 
became  inconsistent  and  vague  at  the  point  where  it 
became  necessary  to  say  precisely  how  the  will  of  the 
sovereign  people  was  to  be  ascertained.  The  Monar- 
chomachs  of  the  sixteenth  century  conceived  that  the 
various  organs  of  provincial  and  municipal  government 
could  voice  the  people's  will ;  the  revolutionists  in  Eng- 
land in  the  next  century  clung  to  their  ordinary  Parlia- 
ment, however  mutilated,  as  adequate  to  the  purpose ; 
Rousseau  insisted  that  the  whole  mass  of  individuals 
who  constituted  the  sovereign  people  must  be  consulted ; 
Sieyes  developed  the  idea  of  a  special  representative 
assembly  for  every  constitution-making  function. 

The  immediate  practical  purpose  that  shaped  Sieyes' 
conception  was  easy  to  see.  The  king  and  the  privi- 
leged estates  —  clergy  and  nobility  —  claimed  a  decisive 
share  in  determining  the  solution  of  the  crisis  in  France. 
They  based  their  claim  on  the  ancient  constitution  of 
the  kingdom.  Sieyes  sought  to  put  the  solution  in  the 
hands  of  the  Thii'd  Estate  exclusively.    To  the  king 


THE   NATIONAL  ASSEMBLY  105 

he  conceded  the  quality  of  "first  citizen,"  by  virtue  of 
which  he  might  take  the  initiative  in  seeking  the  will  of 
the  nation.  The  expression  of  that  will  could  be  only 
by  a  majority  of  the  representatives  of  the  people 
chosen  for  the  purpose.  That  a  minority,  like  the  privi- 
leged estates,  should  have  a  share  out  of  proportion  to 
its  exact  number,  he  insisted  was  a  proposition  that  lay 
outside  the  field  of  rationality.^  The  deputies  of  the 
Third  Estate  represented  twenty-five  millions  of  people : 
those  of  the  nobility  and  clergy  represented  two  hundred 
thousand.  It  was  for  the  former,  therefore,  if  they 
could  not  by  themselves  make  up  the  Estates  General, 
to  assume  the  functions  of  a  "national  assembly."^ 
How  precisely  Sieyes  spoke  the  spirit  of  the  time  appears 
in  the  famous  declaration  of  the  Third  Estate  at  Ver- 
sailles on  June  17  by  which  it  formally  assumed  the 
functions  and  the  title  that  he  had  claimed  for  it.^ 

The  power,  precision  and  insight  with  which  Sieyes 
worked  out  his  conception  of  the  constituent  organ 
give  him  a  prominent  place  in  the  history  of  formal 
political  theory.  Before  he  wrote,  however,  and  with- 
out any  paraphernalia  of  philosophic  dogma,  the  f  ramers 
of  the  American  constitutions  had  realized  the  concep- 
tion in  the  work  of  their  constitutional  conventions. 


i"Si  Ton  abandonne  un  seul  instant  ce  prineipe  de  premiere 
Evidence,  que  la  volonte  commune  est  I'avis  de  la  pluralite  et  non 
oelui  de  la  minorite,  il  est  inutile  de  parler  raison."  —  P.  74. 

*  "  Le  tiers  seul,  dira-t-on,  ne  peut  pas  former  les  fitats  generaux. 
Eh!  tant  mieux!  II  eomposera  une  Assemblee  nationale."  He 
had  used  this  same  term  in  an  earlier  essay.  Cj.  Zweig,  Pouvoir 
Conatituant,  121-122.  In  1787  Lafayette  had  suggested  the  sum- 
moning of  an  "  assemblee  nationale."     See  his  Memoires,  II,  177. 

*  H^lie,  Constitutions  de  la  France,  I,  p.  19. 


106  POLITICAL   THEORIES 

4.  Condorcet 

Sieyes  seems  not  to  have  been  aware  that  his  doc- 
trine of  the  constituent  power  had  been  anticipated  by 
the  practice  of  the  Americans.^  Condorcet,  on  the 
other  hand,  who  contributed  much  to  clarify  the  doc- 
trine, was  well  acquainted  with  American  institutions. 
He  criticised  with  earnestness  some  features  of  the 
governmental  organization  that  prevailed;  but  for 
the  written  constitutions  and  the  convention  by  which 
they  were  framed  and  revised  he  had  only  admiration. 
His  approval  sprang  in  no  sense,  however,  from  mere 
regard  for  the  accomplished  fact.  As  a  poHtical  phi- 
losopher Condorcet  expressed  in  a  peculiarly  marked 
way  that  eighteenth-century  spirit  which  trusted  in  the 
power  of  pure  reason  to  define  and  mould  the  form  of 
institutions.  A  political  system  was  in  his  eyes  pri- 
marily good,  not  because  it  would  work,  but  because  it 
fitted  the  requirements  of  rational  philosophy.  The 
task  of  the  French  National  Assembly  was,  he  said,  to 
frame 

a  constitution  which,  based  solely  on  the  principles  of  reason 
and  justice,  should  assure  to  the  citizens  the  most  complete 
enjoyment  of  their  rights;  to  combine  the  parts  of  that 
constitution  in  such  a  way  that  the  necessity  of  obedience  to 
the  laws,  of  submission  of  the  individual  wills  to  the  general 
will,  should  leave  intact  both  the  sovereignty  of  the  people, 
the  equality  among  the  citizens  and  the  exercise  of  natural 
liberty.^ 

The  making  of  a  constitution  was  thus,  to  Condorcet, 
primarily  a  problem  in  deductive  logic.     From  a  few 

1  Lafayette,  Memoires,  IV,  36. 

*  "Plan  de  Constitution,"  in  CEuvres,  XII,  335. 


THE   CONSTITUENT  POWER  107 

simple  principles  concerning  sovereignty,  liberty  and 
rights  —  principles  too  axiomatic  to  require  discussion, 
exact  reasoning  would  inexorably  deduce  the  funda- 
mental law  of  a  nation.  This  law,  being  the  general 
will,  could  be  formulated  only  by  an  assembly  of  the 
whole  people,  or  of  their  representatives.  On  the 
nature,  authority  and  action  of  the  constituent  as- 
sembly, or  constitutional  convention,  Condorcet's  theo- 
rizing was  practically  exhaustive.^  This  organ  of  the 
national  will  he  found  to  be  the  absolute  and  imcon- 
trollable  source  of  public  law.  It  could  make  and  un- 
make governments  and  constitutions.  It  could  and 
should  preface  a  constitution  with  a  declaration  of 
inalienable  rights  and  immutable  principles;  but  it 
could  later  revoke  the  declaration.  Changes  in  the 
fundamental  law  Condorcet  believed  to  be  inevitable, 
and  for  that  reason  he  held  that  provision  for  making 
them  through  a  convention  should  be  a  part  of  every 
constitution.  To  leave  to  the  government,  or  any 
branch  of  it,  any  share  in  amending  the  constitution, 
would  be  illogical  and  perilous.  The  organic  law  it- 
self, therefore,  must  prescribe  the  method  of  its  own 
revision,  and  provide  for  the  automatic  assembling  of 
a  convention  for  this  purpose.  Only  in  such  a  way  could 
the  certainty  and  security  of  law  be  infused  into  the 
supreme  law,  and  instability  itself  be^ subjected  to  rule.* 

1  "  Fiir  die  Lehxe  vom  pouvoir  eonstituant  hat  Condorcet  eine 
dialektische  Arbeit  von  nicht  zu  untersehatzendem  Werte  geleistet. 
Theoretisch  hat  er  das  Problem  erschopft."  Zweig,  Lehre  vom 
Pouvoir  Constituant,  p.  115. 

2  The  origin  and  details  of  Condoroet's  views  on  this  general 
subject  are  treated  at  length  by  Zweig,  Lehre  vom  Pouvoir  Constituant, 
p.  97  et  seq. 


108  POLITICAL  THEORIES 

Condorcet's  doctrines  on  this  subject  show  clearly- 
enough  the  influence  of  Rousseau's  theory  on  the  one 
side  and  American  practice  on  the  other.^  Whatever 
the  relative  importance  of  these  two  factors,  it  is  suffi- 
cient for  our  purpose  to  note  that  at  this  early  period  in 
the  history  of  the  written  constitution  all  the  bearings 
had  been  investigated  of  that  complex  and  trouble- 
making  question  of  later  days  :  How  can  an  unchange- 
able constitution  be  amended  ?  Condorcet  was  a  radi- 
cal republican.  He  could  see  no  higher  authority  on 
any  constitutional  question  than  the  "immediate  ma- 
jority of  the  people,  the  first  of  the  political  powers  "  ; 
and  his  preoccupation  was  to  insure  that  the  action  of 
this  authority,  although  above  law,  should  be  regulated 
by  the  law.^ 

The  most  famous  of  Condorcet's  works  was  doubt- 
less his  Outlines  of  an  Historical  View  of  the  Progress 
of  the  Human  Mind^  written  while  he  was  in  conceal- 
ment from  the  proscription  of  the  Jacobins  and  very 
shortly  before  his  death.  Though  this  essay  owed 
something  of  its  reputation  to  the  circumstances  under 
which  it  was  written,  it  was  from  ever}'-  point  of  view  a 
monument  to  its  author's  genius.  His  philosophy  of 
history  was  in  striking  contrast  to  that  of  the  earlier 

*  Cj.  supra,  pp.  37-38.  Of  the  original  state  constitutions,  those 
of  Mass.,  Penna.,  Md.,  S.  C,  and  Ga.,  contained  provisions  for 
amendment,  those  of  Penna.  and  Ga.  approaching  most  nearly  to 
Condorcet's  idea. 

2  See  his  interesting  explanation  in  "Plan  de  Constitution," 
CEuvres,  XII,  365-366. 

*  I  have  used  an  anonymous  translation  published  in  London  in 
1795.  For  the  French  original,  "  Esquisse  d'un  tableau  des  progres 
de  I'esprit  humain,"  see  CEuvres,  VI. 


CONDORCET   ON   AMERICA  109 

eighteenth  century.  Where  his  predecessors  were  in 
despair,  because  of  the  vices  of  civiHzation  and  the  de- 
cay of  rational  institutions,  he  found  all  things  making 
for  progress.  The  formation  of  the  French  republic 
was  to  him  the  supreme  triumph  of  reason  in  society 
and  government,  and  the  beginning  of  complete  re- 
generation of  the  race.  To  the  example  of  the  American 
revolution  he  ascribed  an  important  influence  in  the 
larger  movement.  But,  he  said,  "it  would  be  easy  to 
show  how  much  more  pure,  accurate  and  profound  are 
the  principles  upon  which  the  constitution  and  law  of 
France  have  been  formed  than  those  which  direct  the 
Americans."  Both  alike  realized  the  great  and  novel 
idea  of  distinguishing  the  constituent  from  the  ordinary 
legislative  power ;  and  both  provided  by  law  for  reform- 
ing their  constitutions.  The  Americans,  however, 
erred,  he  declared,  in  organizing  their  governments  with 
reference  to  a  "factitious  identity  of  interests"  rather 
than  to  an  equality  of  rights,  and  in  trusting  for  the 
proper  working  of  the  system  rather  to  a  complex 
balancing  of  powers  than  to  the  simple  and  unified 
action  of  the  national  will. 

Condorcet's  objections  to  the  American  system  were 
directed  at  the  points  which  in  experience,  as  compared 
with  France,  seem  to  have  proved  most  sound  and 
useful.  The  protection  of  individual  rights  has  been 
rather  better  secured  by  the  check  and  balance  system 
than  by  the  simplified  expression  of  the  popular  will 
in  the  plebiscite;  and  regard  for  work-a-day  human 
interests  has  promoted  equality  no  less  at  least  than 
has  the  solemn  reiteration  of  the  rights  of  man.     But  if 


110  POLITICAL   THEORIES 

the  philosopher's  prevision  failed  somewhat  at  these 
points,  it  showed  at  others  an  amazing  strength.  His 
forecast  of  the  general  progress  of  the  world  reads  to- 
day much  like  a  history  of  the  nineteenth  century.  He 
foretells  the  wide  diffusion  of  constitutional  liberty,  the 
independence  of  European  colonies  and  the  vast  in- 
crease of  their  populations,  the  abolition  of  government 
by  chartered  companies,  the  freeing  of  commerce  from 
restrictions,  and  the  extension  to  Asia  and  Africa  of  the 
uplifting  influence  of  French  and  American  institutions. 
Before  the  triumphant  march  of  republican  ideas  all 
forms  of  inequality  are  doomed  to  disappear,  as  political 
inequality  has  already  done.  Wealth,  social  condition 
and  culture  will  be  equally  distributed  among  citizens 
through  the  enlightened  operation  of  free  government. 
Finally,  Condorcet's  confidence  in  the  beneficent 
working  of  change  was  so  great  that  he  agreed  with 
Jefferson  in  limiting  the  permanence  of  the  social  pact 
itself.  No  generation,  he  held,  could  bind  its  successor. 
Every  generation  must  determine  for  itself  the  scope 
and  form  of  its  institutions.  This  is  a  logical  result 
of  the  dogma  that  society  rests  upon  the  free  action  of 
the  individual  will ;  but  Condorcet's  acceptance  of  the 
conclusion  was  rendered  easier  by  his  conviction  that 
each  successive  generation,  in  renewing  the  pact,  would 
take  a  position  in  advance  of  its  predecessor  and  con- 
tribute thus  its  share  to  the  progress  of  mankind. 

5.    Thomas  Paine 

In  the  Abbe  Sieyes  were  incarnate  the  spirit  and 
philosophy  that  were  distinctively  French.     Condorcet 


THE   TALENT   OF   THOMAS  PAESTE  111 

exhibited  in  some  measure  the  quaUfying  influence  of 
American  ideas.  A  very  remarkable  blend  of  the  two 
systems,  where  the  separate  ingredients  are  practically 
indistinguishable,  is  to  be  found  in  the  works  of  Thomas 
Paine.  Paine  was  indeed  primarily  and  essentially 
an  agitator  and  a  pamphleteer  rather  than  a  detached 
and  systematic  philosopher;  but  he  had  a  wonderful 
faculty  of  both  thought  and  expression,  and  his  keen 
wit  and  vivid  phrases  caught  and  fixed  the  doctrine  of 
the  revolutions  often  much  more  effectively  than  the 
weightier  and  deeper  analysis  of  mightier  intellects. 
A  summary  view  of  some  leading  aspects  of  Paine 's 
work  will  be  most  useful  for  our  present  pui'pose. 

The  substance  of  his  political  philosophy  is  to  be 
found  in  his  famous  pamphlets  "Common  Sense" 
and  "The  Rights  of  Man."^  The  former  of  these,  as 
is  well  known,  played  a  great  part  in  the  early  days  of 
the  American  Revolution ;  and  the  latter  of  them  was 
no  less  conspicuous  and  influential  in  the  critical  period 
of  the  French  cataclysm.  Throughout  both  of  these 
works  Paine's  facility  in  denunciation  and  invective 
was  characteristically  prominent.  Monarchy,  nobility, 
and  all  such  incidents  of  hereditary  government  were 
systematically  loaded  with  scorn  and  bitter  reproach ; 
but  apart  from  this  common  practice  of  anti-monarchic 
agitation  Paine  presented  from  time  to  time  in  forceful 
terms  the  elementary  principles  of  a  constructive 
poHtical  philosophy. 

At  the  very  basis  of  his  positive  doctrine  he  puts  a 
distinction  between  society  and  the  state,  or  as  he  more 

'  In  Writings,  Conway's  ed.,  Vols.  I  and  II  respectively. 


112  POLITICAL  THEORIES 

commonly  calls  it,  government.  The  opening  passage 
of  "Common  Sense"  is  a  classic  in  this  respect. 

Some  writers  have  so  confounded  society  with  govern- 
ment, as  to  leave  little  or  no  distinction  between  them; 
whereas  they  are  not  only  different,  but  have  different 
origins.  Society  is  produced  by  our  wants,  and  government 
by  our  wickedness;  the  former  promotes  our  happiness 
positively,  by  uniting  our  affections,  the  latter  negatively,  by 
restraining  our  vices.  The  one  encourages  intercourse,  the 
other  creates  distinctions.  The  first  is  a  patron,  the  last 
a  punisher. 

Society  in  every  state  is  a  blessing,  but  Government,  even 
in  its  best  state,  is  but  a  necessary  evil ;  in  its  worst  state,  an 
intolerable  one;  for  when  we  suffer,  or  are  exposed  to  the 
same  miseries  hy  a  Government,  which  we  might  expect  in 
a  country  without  Government,  our  calamity  is  heightened 
by  reflecting  that  we  furnish  the  means  by  which  we  suffer. 
Government,  hke  dress,  is  the  badge  of  lost  innocence ;  the 
palaces  of  kings  are  built  upon  the  ruins  of  the  bowers  of 
Paradise.^ 

The  distinction  here  so  strikingly  expressed  recm^s 
again  and  again  in  his  writings.  His  thinking  on  this 
point  is  very  obviously  derived  from  the  philosophy 
transmitted  by  Locke.  It  lends  itself  readily  to  a 
further  notion,  exploited  at  length  by  Paine,  namely, 
that  the  function  of  government  is  after  all  a  narrowly 
limited  and  relatively  subsidiarj^  one.  Paine  exhibits 
clearly  the  influence  of  the  laissez-faire  dogma  that  per- 
vaded his  time.  To  him,  as  to  very  many  others  of  the 
revolutionists,  the  rights  of  man  inevitably  suggest  the 
limitations  of  government. 

Paine 's  classification  of  governments  was  reminiscent 
of  Montesquieu  and  Rousseau.     His  especial  problem 

1  Writings,  I,  69. 


THE   REPRESENTATIVE   REPUBLIC  113 

was  to  find  a  place  for  the  category  "republic";   for 

Paine  was  in  the  fullest  sense  a  republican,  as  opposed 

to  the  monarchists.    With  the  natural  tendency  of  the 

controversialist,  he  gave  to  the  term  republican  the 

meaning  of  supreme  dignity.    He  adopted  substantially 

the  doctrine  of  Rousseau,  that  all  legitimate  government 

is  republican.^ 

What  is  called  a  republic  is  not  any  particular  form  of 
government.  ...  It  is  a  word  of  a  good  original  referring 
to  what  ought  to  be  the  character  and  business  of  govern- 
ment. .  .  .  Republican  government  is  no  other  than 
government  established  and  conducted  for  the  interest  of  the 
public,  as  well  individually  as  collectively .^ 

The  distinct  forms  of  government  that  he  recognizes 
are  the  democratical,  the  aristocratical,  the  monarchical, 
and  what  he  says  is  now  called  the  "representative." 
Of  these  monarchy  and  aristocracy  are  corrupt,  as  in- 
compatible with  the  true  end  of  government ;  democ- 
racy is  inadequate  to  the  affairs  of  an  extensive  popula- 
tion ;  and  representative  government  thus  becomes  the 
only  logical  and  adequate  system.  The  ideal,  as  he 
sees  it,  is  representation  engrafted  upon  democracy. 
The  advantages  of  such  a  system  are  "as  much  superior 
to  hereditary  government  as  the  republic  of  letters  is  to 
hereditary  literature." 

Another  significant  doctrine  of  Paine's  is  that  as  to 
the  nature  of  a  constitution.  On  this  point  he  takes 
advanced  ground  for  the  scientific  excellence  of  what 
America  has  produced.  Burke's  vague  and  mystic 
conceptions  based  upon  the  English  constitution  excite 
Paine's  utmost  irreverence. 

1  Supra,  p.  28.  «  Writings,  II,  421. 

I 


114  POLITICAL  THEORIES 

A  constitution  is  not  a  thing  in  name  only,  but  in  fact. 
It  has  not  an  ideal,  but  a  real  existence ;  and  wherever  it 
cannot  be  produced  in  a  visible  form  there  is  none.  A  con- 
stitution is  a  thing  antecedent  to  a  government ;  and  a  gov- 
ernment is  only  the  creature  of  a  constitution.  .  .  .  Can, 
then,  Mr.  Burke  produce  the  English  Constitution?  If  he 
cannot,  we  may  fairly  conclude  that  though  it  has  been  so 
much  talked  about,  no  such  thing  as  a  constitution  exists 
or  ever  did  exist ;  and  consequently  that  the  people  have  yet 
a  constitution  to  form.^ 

Whatever  we  may  think  of  the  ultimate  soundness  of 
Paine's  argument  on  this  point,  it  certainly  does  not 
lack  clearness  and  a  sort  of  rude  vigor  that  must  have 
appealed  very  strongly  to  the  radical  elements  of  his 
day.  It  is  not  surprising  that  he  was  looked  upon  in 
England  as  a  dangerous  man.  Before  such  sharp 
and  practical  dogmas  as  those  quoted,  the  mass  of  vague 
and  antiquated  traditions  and  practices  that  made  up 
so  much  of  the  English  constitution  appeared  ridiculous. 
After  a  satirical  sketch  of  the  various  elements  of  the 
English  constitution  in  their  origin  and  history,  Paine 
said: 

I  cannot  believe  that  any  nation  reasoning  on  its  own  rights 
would  have  thought  of  calling  those  things  a  constitution  if 
the  cry  of  constitution  had  not  been  set  up  by  the  govern- 
ment. It  has  got  into  circulation  like  the  words  'bore'  and 
'quoz'  [quiz]  by  being  chalked  up  in  the  speeches  of  Parlia- 
ment, as  those  words  were  on  window-shutters  and  door- 
posts.^ 

On  the  form  and  content  of  the  written  constitution, 
to  him  the  only  constitution  proper,  Paine  had  much 
to  say,  based  almost  entirely  on  the  constitutions  of  the 

1  Writings,  II,  309-310.  « Ibid.,  II,  438. 


THE  POWERS  OF  GOVERNMENT  115 

United  States  with  which  he  was  so  familiar.  His  confi- 
dence was  strong  that  the  work  of  the  Americans  had 
made  an  epoch  in  the  history  of  pohtical  science.  "  The 
American  constitutions,"  he  said,  "were  to  Hberty  what 
grammar  is  to  language.  They  define  its  parts  of  speech 
and  practically  construct  them  into  syntax."  ^  On 
one  very  conspicuous  feature  of  the  American  constitu- 
tions, namely,  the  threefold  classification  of  the  powers 
of  government,  Paine  was  at  variance  with  the  leaders 
of  American  thought.  He  perceived  and  pointed  out 
that  there  were  in  fact  but  two  kinds  of  power.  The 
function  of  government,  he  held,  was  exhausted  in, 
first  the  making,  and  second  the  executing,  of  laws. 
Everything  pertaining  to  civil  government  could  be 
classed  under  one  or  the  other  of  these  two  divisions. 
In  taking  this  position  Paine,  of  course,  merely  de- 
veloped what  Montesquieu  himself  had  casually 
remarked,  that  the  judiciary  is  not  in  its  essence  dis- 
tinct from,  but  is  merely  one  aspect  of,  the  executive 
power.^ 

A  feature  of  the  American  system  on  which  Paine 
dwelt  with  special  approval  was  the  provision  made  for 
revision  and  amendment  of  the  constitution.  It  was 
not  in  the  spirit  of  the  man  to  recognize  anything  as 
permanent,  or  as  entitled  to  special  respect  by  virtue 
of  its  age.  He  was  thoroughly  at  one  with  his  time  in 
expecting  and  providing  for  a  continuing  progress 
in  political  as  in  other  human  concerns. 

Finally,  it  is  worth  while  to  notice  the  clearness  of 
Paine's  analysis  in  respect  to  the  conception  of  law. 

1  Writings,  p.  336.  *  Esprit  des  Lois,  liv.  xi,  chap.  vi. 


116  POLITICAL  THEORIES 

Obviously  influenced  by  the  idea  of  law  that  Rousseau 
particularly  emphasized,  Paine  took  occasion  to  point 
out  that  by  no  means  all  the  enactments  of  a  legisla- 
ture are  entitled  to  the  name  and  character  of  law. 
"All  laws,"  he  says,  "are  acts,  but  all  acts  are  not  laws." 
Much  that  has  the  form  of  legislation  is  in  fact  but  busi- 
ness, contract,  agency,  negotiation  —  the  normal  pro- 
cedure by  which  an  association  of  men  carries  out  cer- 
tain purposes.  Distinct  from  these  administrative 
instructions,  laws  are  only  those  acts  of  the  assembly 
or  commonwealth  that  have  universal  operation,  or 
apply  to  every  individual  of  the  commonwealth.^ 
This  very  useful  distinction  Paine  employed  in  setting 
forth  his  own  particular  views  as  to  the  then  trouble- 
some affairs  in  America  of  the  finances  and  the  paper 

money. 

6.   The  French  Constitutions 

Sieyes,  Condorcet  and  Paine  were  all  members  of 
one  or  both  of  the  assemblies  in  which  the  French  consti- 
tutions of  1791  and  1793  were  framed.  The  documents 
reflect  clearly  enough  the  doctrines  conspicuous  in  these 
philosophers ;  but  many  minds  no  less  strong  and  fertile 
than  theirs  influenced  the  form  in  which  the  constitu- 
tions were  cast.  The  problems  of  statecraft  in  France 
during  those  years  were  as  complex  as  any  that  ever 
vexed  the  human  intellect.  Practical  politics  pressed 
insistently  upon  the  attention  of  the  revolutionary 
leaders.  To  frame  a  constitution  amid  the  turmoil 
of  the  time  was  a  task  for  titans.  The  outcome 
has  been  the  text  for  as  virulent  criticism  as  has 

1  Writings,  II,  142. 


THE   FRENCH  CONSTITUTIONS  117 

ever  been  directed  against  a  work  of  man.  That 
mistakes  were  made  may  readily  enough  be  admitted ; 
that  the  adaptation  of  means  to  ends  in  the  organiza- 
tion of  the  government  lacked  something  of  practi- 
cal sagacity  cannot  be  questioned ;  but  taken  as  a 
whole  and  in  view  of  all  the  difficulties  with  which 
the  work  was  surrounded,  the  first  written  constitution 
of  France  was  a  remarkable  monument  of  constructive 
power.  It  certainly  does  not  suffer  by  comparison 
with  the  fu'st  attempts  in  England  ^  and  in  the  other 
nations  of  continental  Europe.  Nor  indeed  was  its 
practical  failure  more  complete  than  that  of  the  first 
general  constitution  of  the  United  States  —  the  ill- 
fated  Articles  of  Confederation. 

The  French  constitution-makers,  like  the  American, 
judged  that  the  fundamental  principles  of  their  political 
philosophy  ought  to  form  a  part  of  their  positive  law.^ 
Hence  the  famous  Declaration  of  the  Rights  of  Man  and 
of  Citizen,  first  adopted  on  August  26,  1789,  was  made  a 
part  of  the  completed  constitution  of  1791,  and  appeared 
with  more  or  less  modification  in  those  of  1793  and  1795. 
In  most  respects  the  content  of  the  French  Declaration 
was  identical  with  that  of  the  American  Bills  of  Rights.^ 
The  same  theory  of  the  relations  between  the  state  and 

*  I  refer  to  the  abortive  "Agreement  of  the  People."  Political 
Theories  from  Luther  to  Montesquieu,  p.  238. 

^  Opinion  on  this  point  was  by  no  means  unanimous  in  the 
Constituent  Assembly.  Cf.  Buchez  and  Roux,  Hist.  Parlementaire, 
II,  200. 

3  JeUinek  found  an  American  analogue  for  each  article  of  the 
French  Declaration.  Cf.  his  Declaration  of  the  Rights  of  Man,  ch. 
V.  His  inference  that  the  French  merely  copied  from  the  Americans 
was  attacked  with  vigor  and  some  bitterness  by  Boutmy  in  Annates 
de  I'Ecole  Libre,  XVII,  415. 


118  POLITICAL   THEORIES 

the  individual  was  set  forth,  but  with  distinctly  more 
precision  in  expression  and  logical  coherence  in  arrange- 
ment than  appeared  in  any  of  the  American  documents. 

In  its  preamble  the  French  Declaration  states  the 
reason  for  its  existence  —  to  enable  anybody  at  any 
time  to  compare  the  acts  of  legislature  or  executive 
with  the  fundamental  principles  of  government.  Then 
follow  these  principles.  Men  are  from  birth  free  and 
equal  in  rights.  The  end  of  every  political  association 
is  the  maintenance  of  the  natural  and  imprescriptible 
rights  of  man,  which  are  summed  up  as  "liberty, 
property,  security  and  resistance  to  oppression." 
Liberty  is  defined  :  "  the  power  to  do  anything  that  does 
not  harm  another"  ;  it  includes,  therefore,  such  exercise 
of  natural  rights  as  is  consistent  with  the  like  exercise 
by  others.  The  limitation  thus  necessary  upon  the 
exercise  of  the  natural  rights  can  be  fixed  only  by  law 
(loi) ;  and  law  in  its  turn  is  defined  in  the  phrase  made 
so  familiar  by  Rousseau  —  "the  expression  of  the 
general  will  {volonte  generale)^  In  the  formulation 
of  the  law  it  is  the  right  of  every  citizen  to  participate 
either  in  person  or  by  representative ;  and  the  prescrip- 
tions of  the  law  must  apply  with  precise  equahty  to  all. 

The  purpose  to  leave  no  ground  for  the  ancient  order 
of  privilege  and  arbitrary  rule  is  clear  in  all  these  elabo- 
rate dogmas  about  law.  This  purpose  is  achieved, 
however,  at  some  cost  of  logical  consistency.  For  while 
law,  as  the  expression  of  the  general  will,  should  be 
deemed  self-determining  as  to  its  content,  we  fuid  the 
Declaration  anxiously  asserting  that  the  law  "has  no 
right"  to  forbid  what  is  not  harmful  to  the  society 


THE    DECLARATION    OF    RIGHTS  119 

(art.  5)  and  that  the  law  "  ought  to  be  the  same  for  all  '* 
(art.  6).  These  locutions,  if  not  the  result  of  mere 
inadvertence,  suggest  something  less  than  perfect 
confidence  on  the  part  of  the  Assembly  in  the  practical 
working  of  the  system  that  was  being  established. 

As  elements  of  the  "security"  that  belongs  of  natural 
right  to  man,  the  Declaration  enumerates  the  familiar 
safeguards  of  English  and  American  practice  in  regard 
to  arrest,  detention  and  punishment.  Freedom  of 
opinion,  "even  religious,"  and  of  expression  are  specifi- 
cally catalogued  as  natural  rights,  and  in  the  main 
body  of  the  constitution  (Tit.  I)  the  list  is  increased  by 
freedom  of  movement,  of  peaceable  assembling  and  of 
petitioning  the  authorities.  The  "sacred  and  in- 
violable" right  of  property  is  assured  by  provisions  for 
equal  taxation  and  for  compensation  when  private 
possessions  are  taken  for  public  use. 

It  was  not  alone  by  the  f  oraial  recital  of  natural  rights 
that  the  French  constitution-makers  sought  to  insure 
respect  for  them.  An  explicit  positive  guarantee  of 
them  was  incorporated  in  the  constitution.  With 
like  explicitness  the  abolition  of  all  institutions  incom- 
patible with  liberty  and  equality  was  decreed.  More- 
over, the  principles  of  recent  philosophy  as  to  the 
source  and  organization  of  power  in  the  government 
were  announced  and  applied.  Sovereignty  was  de- 
clared to  reside  exclusively  in  the  nation,^  and  to  be 
"one,    indivisible,   inalienable    and   imprescriptible."^ 

'  "  Le  prineipe  de  tout  souverainete  reside  essentiellement  dans 
la  nation ;  nul  corps,  nul  individu  ne  peut  exercer  d'autorit^  qui 
n'en  emane  expressement."     Declaration,  art.  3. 

2  Const.,  Tit.  III. 


120  POLITICAL   THEORIES 

The  powers  of  the  sovereign  nation  must  be  exercised 
by  delegation,  and  accordingly  the  assignment  of  f mic- 
tions to  legislative;  executive  and  judicial  organs  was 
systematically  prescribed.^  In  this  matter  the  doctrme 
of  Montesquieu,  already  adopted  by  the  Amencans, 
was  applied  by  the  French  of  1791  in  its  fulness.  The 
separation  of  powers,  like  the  guarantee  of  individual 
rights,  was  romidly  declared  to  be  an  indispensable 
evidence  that  any  nation  possessed  a  constitution.^ 
The  particular  category  to  which  the  constitution  of 
1791  belonged  was  annoimced  in  these  terms:  "The 
French  constitution  is  representative :  the  representa- 
tives are  the  Corps  Legislatif  and  the  King."  ^  Why  the 
elected  judges  to  whom  the  judicial  power  was  formally 
delegated  were  not  included  among  the  "representa- 
tives" does  not  appear.  The  omission  again  illus- 
trates the  practice,  started  by  Montesquieu  himself, 
of  attributmg  relative  insignificance  to  the  judiciary 
as  compared  with  the  other  departments. 

Having  adopted  advanced  philosophy  as  to  individual 
rights  and  governmental  organization,  the  Constituent 
Assembly  unflinchingly  propounded  the  capital  dogma 
of  revolution:  "The  nation  has  the  imprescriptible 
right  to  change  its  constitution."  ^  Not  by  way  of 
restricting  this  absolute  right,  but  as  a  measure  of 
expediency,^  a  method  of  amendment  was  incorporated 

1  Const.,  Tit.  III. 

2  "  Toute  soeiete  dans  laquelle  la  garantie  des  droits  n'est  pas 
assuree  ni  la  separation  des  pouvoirs  determinge,  n'a  point  de 
constitution."     Declaration,  art.  16. 

»  Tit.  Ill,  art.  2.  "  Tit.  VII,  art.  1. 

'  ".  .  .  considerant  qu'il  est  plus  conforme  a  I'interet  national 
d'user  seulement,  par  les  moyens  pris  dans  la  constitution  meme, 


REIGN   OF   THE    CONVENTION  121 

in  the  constitution.  The  process  prescribed  was  long 
and  complex,  and  it  deviated  much  from  the  principle 
that  the  constituent  power  shall  be  entirely  separate 
from  that  of  ordinary  legislation.^  The  labor  expended 
in  devising  this  process  was  wasted.  Less  than  two  years 
after  the  Constitution  of  1791  went  into  effect  it  was 
summarily  set  aside,  with  scant  regard  for  its  own  pro- 
visions, by  decree  of  the  Corps  Legislatif,"^  its  own  crea- 
ture. This  same  body,  assuming  the  historic  name 
"National  Assembly,"  but  disclaiming  the  right  to 
prescribe  rules  for  the  exercise  of  sovereignty,  "in- 
vited" the  citizens  to  choose  in  indicated  ways  dele- 
gates to  a  "  National  Convention. ' '  ^  The  invitation  was 
duly  accepted  and  the  famous  Convention  became  for 
three  anarchic  years  the  titular  wielder  of  all  political 
authority,  constituent  and  governmental,  for  the  dis- 
tracted French  Republic. 

Psychology  and  sociology,  rather  than  political  science, 
must  explain  the  frenzied  travesty  of  rational  govern- 
ment that  characterized  the  ascendency  of  the  Jacobins. 
A  passing  glance  only  may  be  given  to  the  evidence 
that  the  theory  of  individual  rights  endured  and  ex- 
panded even  while  the  Terror  was  making  it  in  prac- 
tice a  bloody  mockery.  The  Girondists,  during  their 
brief  control  of  the  Convention,  framed  a  constitution 
in  which  the  influence  of  Condorcet  and  Paine  was 
preeminent.  Their  draft  shared  in  their  fate  when  the 
Jacobins  ovei'whelmed  them,  and  in  June,  1793,  the 

du  droit  d'en  reformer  les  articles  dont  I'experienoe  aurait  fait 
sentir  les  ineonvenients.  .  .  ."  Ibid. 

>  Cf.  supra,  pp.  104,  107. 

2  Helie,  op.  cit.,  pp.  326  et  seq.  » Ibid.,  p.  329. 


122  POLITICAL  THEORIES 

triumphant  faction  adopted  its  own  version  of  the 
supreme  law  of  the  French  Republic.  This  draft  was 
duly  ratified  by  the  people  in  such  an  election  as  the 
conditions  permitted,  but  it  was  never  put  into  prac- 
tical operation. 

This  abortive  instrument  begins  with  a  Declaration 
of  Rights  that  exceeds  in  fulness  that  of  1789.  The 
end  of  "society"  is  asserted  to  be  the  general  welfare 
{le  honheur  commun)  and  the  object  of  government  to  be 
the  guarantee  of  man's  natural  and  imprescriptible 
rights.  To  the  list  of  these  rights  is  made  the  signifi- 
cant addition  of  public  assistance  (les  secours  publics) 
to  the  unfortunate.  "Society  owes  subsistence  to 
unfortunate  citizens  either  in  procuring  work  for  them 
or  in  insuring  a  livelihood  to  those  who  are  unable  to 
work."  ^  Public  education  is  also  guaranteed  to  every 
Frenchman.^  As  to  sovereignty,  its  depositary  is  de- 
clared to  be  "the  French  people" ;  and  the  sanction  of 
this  truth  is  proclaimed  in  the  ancient  dogma  of  tyran- 
nicide :  "  Let  every  indi\ddual  who  would  usurp  the 
sovereignty  be  instantly  put  to  death  by  free  men."  ^ 
In  no  less  ambiguous  terms  the  right  of  insurrection  is 
proclaimed  :  "When  the  government  violates  the  rights 
of  the  people,  insurrection  is  for  the  people  and  for  every 
part  (chaque  portion)  of  the  people  the  most  sacred  of 
rights  and  the  most  indispensable  of  duties."  * 

The  militant  democracy  that  speaks  in  these  drastic 
dogmas  reveals  itself  ^\ith  equal  distinctness  in  the 
governmental  organization  in  the  constitution  of  1793. 

>  Declaration,  art.  21.  2  Const.,  art.  122. 

'  Declaration,  art.  27.  *  Ibid.,  art.  35. 


LAW  AND   RIGHTS   IN    1793  123 

The  separation  of  powers,  which  two  years  before  had 
been  declared  the  sine  qua  non  of  a  constitution,  is 
utterly  ignored.  Not  through  the  jealousy  and  strife 
of  rival  subordinate  authorities,  but  through  the  direct 
and  increasing  activity  and  control  of  the  sovereign 
people  itself  are  guarantees  sought  for  liberty  and 
equality.  A  legislative  assembly  (Corps  Legislatif)  is 
provided  for,  chosen  annually  by  manhood  suffrage; 
no  law  can  have  effect,  however,  until  approved  by  the 
people  in  their  primary  assemblies.^  The  adminis- 
tration is  put  in  the  hands  of  an  executive  council  of 
twenty-four,  elected  by  the  legislative  assembly  from 
a  Hst  of  candidates  named  by  electoral  assemblies ;  of 
independence  with  respect  to  the  legislature  no  vestige 
is  possessed  by  this  council. 

Pending  the  putting  in  force  of  this  Constitution 
of  1793  the  French  Republic,  by  proceedings  that  lacked 
the  crudest  elements  of  rational  politics,  achieved  an 
astounding  triumph  over  its  foes  both  domestic  and 
foreign.  The  driving  force  in  this  extraordinary  ex- 
ploit was  a  fury  of  patriotic  emotion  as  primitive  as 
the  religious  fanaticism  that  installed  the  Moham- 
medans upon  the  ruins  of  the  Roman  dominion.  In 
1795,  with  returning  sanity,  the  Convention  resumed  its 
constituent  activity,  but  discarding  its  earlier  scheme, 
it  put  in  force  an  entirely  new  constitution.  This  man- 
ifested a  pronounced  reaction  from  the  extreme  de- 
mocracy of  1793.    The  Declaration  of  Rights  omitted 

^  On  certain  enumerated  subjects  the  Corps  Legislatif  was  em- 
powered to  issue  "decrees"  without  submitting  them  to  the  people. 
Acte  Constitutionnel,  sees.  53,  54,  56-60.    In  Helie,  op.  cit.  I,  380. 


124  POLITICAL  THEORIES 

tyrannicide  and  insurrection,  public  assistance  and 
education/  and  seriously  qualified  other  provisions 
that  had  proved  baneful  in  recent  experience.  Most 
significant  of  all,  perhaps,  was  the  appearance  of  a  list 
of  duties  annexed  to  the  rights  of  man  and  citizen. 
Nothing  in  this  constitution  more  strikingly  suggests 
the  mental  attitude  of  France  at  this  time  than  the 
grave  enumeration  of  the  simplest  maxims  of  morality 
in  the  fundamental  law.  "Do  not  to  another  what 
you  would  not  have  done  to  you.  Do  to  others  the 
good  that  you  would  like  to  receive."  "No  one  is  a 
good  citizen  who  is  not  a  good  son,  or  father,  or  brother 
or  friend  or  spouse."  "No  one  is  a  good  man  (homme 
de  Hen)  who  does  not  freely  and  religiously  obey  the 
laws."  It  is  hard  to  realize  that  such  elementary  moral 
doctrines  should  have  been  soberly  enacted  into  law 
by  an  enlightened  people. 

In  the  organization  of  government  there  was  in  large 
measure  a  reversion  to  the  principles  of  1791.  Sover- 
eignty, which  was  in  1791  ascribed  to  the  "nation" 
and  in  1793  to  the  "French  people,"  now  was  found  in 
"the  whole  body  (runiversalite)  of  French  citizens." 
The  separation  of  powers  appeared  agaia,  as  essential, 
however,  not  to  a  constitution,  but  to  "the  social 
guarantee."  ^  The  executive  as  an  independent  power 
was  reconstituted  after  its  three  years  of  abeyance, 
but  was  put  into  commission  and  vested  in  a  Directory 
of  five  members.     A  bicameral  legislature  was  a  new 

^  A  system  of  public  scliools  was  provided  for  (Const.  Tit.  X), 
but  without  assertion  that  these  were  of  natural  right. 

2  "  La  garantie  sociale  ne  pent  exister  si  la  division  des  pouvoirs 
n'est  pas  etablie.  ..."  —  Declaration,  art.  22. 


THE    PLEBISCITARY   EMPIRE  125 

feature  in  French  practice.  It  was  not  constituted, 
however,  on  the  English  and  American  model,  with 
chambers  of  largely  identical  powers.  In  the  new 
Corps  Legislatif  the  Council  of  the  Five  Hundred  had 
the  sole  power  to  propose  laws  and  the  Council  of  the 
Ancients  the  sole  power  to  enact  them. 

With  the  Constitution  of  1795  ended  for  nearly  a 
score  of  years  the  formulation  of  the  public  law  of  France 
in  the  terms  of  political  philosophy.  Neither  internal 
nor  external  conditions  were  such  as  to  permit  of  popular 
government.  With  the  revelation  of  genius  in  Napo- 
leon Bonaparte  the  distracted  people  were  well  satis- 
fied to  acquiesce  in  his  assumption  of  the  right  to  govern 
in  their  name.  Consulate  and  empire  followed  in  due 
course.  For  these  systems  also  there  were  written 
constitutions;  but  they  contained  nothing  about 
natural  rights,  or  the  separation  of  powers,  or  the  sov- 
ereignty of  the  people,  or  the  right  to  cashier  govern- 
ments, or  any  other  of  the  great  dogmas  of  political 
philosophy.  Substantially  their  whole  content  was  a 
series  of  shrewdly  planned  regulations  through  which  an 
efl&cient  administration  directed  public  affairs  accord- 
ing to  the  will  of  the  monarch.  In  the  Napoleonic 
regime  practically  the  only  vestige  of  revolutionary 
principle  was  the  dogma  that  the  Emperor  governed 
as  the  chosen  representative  of  the  French  people, 
whose  will  was  expressed  in  the  plebiscite  by  which 
each  step  in  the  transformation  of  the  government  was 
ratified. 


126  POLITICAL  THEORIES 

7.   Conclusion 

By  the  American  and  French  revolutions  the  methods 
of  poHtical  salvation  that  had  appealed  to  the  philoso- 
phy of  the  mid-eighteenth  century  were  pretty  thor- 
oughly tested.  The  simple  principles  of  a  rational 
theory  of  state  and  government  were  embodied  in 
constitutional  codes,  where  every  man  might  readily 
find  clearly  outlined  the  source  and  substance  of  the 
social  and  political  order.  Nature,  universal  and 
immutable,  was  the  basis  of  these  codes ;  liberty  and 
equality  for  every  individual  were  the  imperative  dic- 
tates of  nature's  organ,  reason.  Thus  the  ancient 
dogma  of  the  Stoic  jurist  became  at  last  effective 
positive  law.  The  Declarations  of  Rights  put  adequate 
qualifications  upon  natural  rights  to  convert  them  into 
workable  civil  rights,  and  the  sovereignty  of  the  people 
received  an  intelligible  democratic  interpretation  in  a 
wide  manhood  suffrage,  acting  through  a  distinct  con- 
stituent organ,  and  assuring  to  a  numerical  majority 
of  the  citizens  the  effective  expression  of  the  sovereign 
will. 

In  neither  America  nor  France  were  the  dogmas  of 
these  democratic  constitutions  fully  realized  in  prac- 
tice. On  the  one  side  of  the  Atlantic  Indians,  negroes 
and  loyalists  found  little  security  for  life,  liberty 
or  property ;  on  the  other  side  even  less  was  the  lot 
of  royalists,  aristocrats  and  the  minority  factions  in 
general.  This  condition  was  in  large  measure  due, 
of  course,  especially  in  Europe,  to  the  exigencies  of 
flagrant  war,  during  which  philosophy,  like  law,  is 


INDIVIDUAL  OR  NATIONAL   RIGHTS?  127 

necessarily  in  abeyance.  There  was,  however,  a  de- 
fect in  fundamental  theory  that  was  manifest  in  the 
imperfect  working  of  the  new  constitutions.  The 
rights  of  man  is  prima  facie  a  cosmopolitical  dogma. 
Its  application  is  to  all  men.  To  bring  it  into  operation 
in  any  limited  group  requires  first  a  most  explicit 
definition  of  the  group.  The  constitutions  that  be- 
stowed and  withheld  rights  in  the  name  of  France,  or 
the  Nation,  or  the  French  People,  or  the  French 
Republic,  failed  to  fix  with  philosophical  precision  the 
concept  that  each  of  these  terms  designated.  The 
individual  was  mthlessly  overridden  in  maintaining 
the  rights  of  the  nation  or  the  people ;  but  no  clear 
coherent  declaration  appeared  cataloguing  these  rights 
and  defining  in  logical  formula  the  entity  that 
possessed  them.  What  was  "France"  or  the  "French 
Nation,"  from  the  point  of  view  of  nature  and  reason? 
Only  the  totality  of  those  individuals,  with  their  pos- 
sessions, who  willed  to  unite  imder  that  designation. 
Such  would  have  been  the  logical  answer  of  the  revolu- 
tionist philosophy.  But  the  obvious  deductions  from 
this  dogma^  were  such  as  to  repel  the  most  fanatical 
devotee  of  theory.  Hence  the  France  that  the  repub- 
licans so  effectively  maintained  against  domestic  and 
foreign  foes  was  the  France  of  heredity,  of  history  and 
tradition.  These  were,  however,  sorry  principles  to  be 
employed  by  the  devotees  of  nature  and  abstract  rea- 
son. Tradition  and  history  were  the  capital  supports 
for  the  claims  of  the  Bourbons  and  the  emigres.    When 

'  It  would  have  excluded  la  Vendee,  for  example,  from  the 
Republic. 


128  POLITICAL   THEORIES 

the  French  RepubHc  turned  from  defence  to  aggression 
and  began  to  annex  territory  on  the  Rhine  and  in  Italy, 
all  the  specious  paraphernalia  of  appeals  to  the  op- 
pressed and  of  plebiscites  did  not  disguise  the  fact  that 
the  policy  and  theories  of  Louis  XIV  and  his  predecessor 
were  again  determining  European  politics.  Nor  was 
the  evidence  of  this  fact  obscured  when  Napoleon 
Bonaparte  assumed  the  leadership  and  systematically 
put  into  the  foreground  the  ideas  and  institutions  of 
Caesar  and  of  Charlemagne.^  When  a  hereditary 
empire,  with  a  hereditary  nobility,  was  established  in 
France,  with  dominion  over  all  Western  Europe,  and 
these  with  the  enthusiastic  approval  of  a  majority  of 
the  French  people,  it  was  obvious  that  the  political 
philosophy  of  1789  and  1793  had  lost  its  hold  on 
governmental  affairs,  and  that  the  principles  of  the 
reaction  were  beginning  to  gain  the  upper  hand. 

Before  examining  these  principles  in  detail,  it  is 
essential,  however,  to  devote  some  attention  to  certain 
aspects  of  liberal  thought  that  prevailed  outside  of 
France.  At  the  end  of  the  eighteenth  century,  while 
the  typical  philosophy  of  the  century  had  run  its  course 
to  desuetude  in  the  practical  politics  of  France,  it  was 
in  Great  Britain  and  Germany  receiving  a  significant 

1  Sorel  acutely  discerns  the  spirit  of  the  old  regime  continu- 
ously operating  from  the  beginning  of  the  revolution.  Speaking 
of  the  common  boasts  of  the  French  republicans  that  the  spirit  of 
other  free  peoples  was  manifest  in  themselves,  he  saj'S :  "  On 
leur  declare  successivement  qu'ils  sont  des  Anglais,  des  Americains, 
des  Romains,  des  Spartiates :  ils  demeurent  le  lendemain  ce  qu'ils 
etaient  la  veille,  des  Frangais  du  dix-huitieme  siecle,  et  I'esprit 
de  I'ancien  goixvernement  se  retrouve  jusque  dans  les  institutions 
destinees  h  I'aneantir."     UEurope  et  la  Revolution  frangaise,  I,  223. 


GERMAN   EPIGONI  129 

development  in  the  speculations  of  certain  powerful 
intellects.  Jeremy  Bentham,  the  chief  of  the  English 
school,  we  shall  leave  for  consideration  in  a  later  chap- 
ter.^ The  Germans,  who  were  peculiarly  expert  in 
giving  logical  perfection  to  the  system  that  the  French 
politicians  were  reducing  to  a  nullity,  must  receive 
our  attention  here. 

SELECT  REFERENCES 

Annates  de  I'Ecole  libre  de  la  science  politique,  July,  1902,  p.  415. 
Borgeaud,  Adoption  and  Amendment  of  Constitutions,  chaps,  iii,  iv. 
Condorcet,  "Plan  de  Constitution,"  \r)CEuvres,Yo\.  XII.  Jellinek, 
Declaration  of  the  Rights  of  Man  and  of  Citizens  (translation). 
Merriam,  History  of  American  PoUtical  Theories,  chap.  ii.  Michel, 
Idee  de  I'iJtat,  pp.  89-104.  Paine,  Common  Sense;  Rights  of 
Man,  Part  II.  Rosenthal,  America  and  France.  Scherger,  Evolu- 
tion of  Modern  Liberty,  chaps,  viii-xii.  Si^yes,  "What  Is  the 
Third  Estate?"  chap.  v.  Sorel,  L' Europe  el  la  Revolviion  frangaise, 
Parti. 

^  Infra,  ohap.  vi. 


CHAPTER  IV 

THE   GERMAN   IDEALISTS 

1.   Immanuel  Kant 

When  the  storm  of  revolution  broke  over  Europe 
Kant  was  the  generally  recognized  leader  of  German 
philosophy.  His  Critique  of  the  Pure  Reason,  published 
in  1781,  was  in  the  most  literal  sense  an  epoch-making 
work.  It  produced  at  once  a  profound  impression  on  the 
intellectual  life  of  Germany,  and  its  influence,  sustained 
and  promoted  by  that  of  the  other  works  that  followed 
it,  fixed  the  lines  in  which  philosophy  moved  for  a 
century.  Yet  Kant  was  not,  in  the  substance  of  his 
thought,  an  innovator.  His  r6le  was  rather  that  of 
the  harmonizer  and  systematizer  of  familiar  but 
conflicting  doctrines.  In  metaphysics  he  mediatized 
between  the  dogmatists  and  intuitionists  on  the  one 
side,  and  the  sceptics  and  empiricists  on  the  other,  who 
in  their  reciprocal  antagonism  had  brought  philosophy 
to  an  impasse.  Fundamentally  Kant  was  with  the 
intuitionists.  Ultimate  truth  and  reality  were  for 
him  as  for  them  predicable  of  ideas  that  were  in- 
dependent of  sense-perception  and  experience.  Yet 
his  analysis  of  the  intellectual  faculties,  especially  of 
reason  itself,  gave  a  new  and  fruitful  aspect  to  this 
ancient  idealism.     At  the  same  time  Kant  took  the 

130 


KANT'S  PROPER  FIELD  131 

doctrines  of  the  empiricists  into  his  system  by  a  duahsm 
that  got  as  near  to  formal  unity  as  any  Hke  system 
m  history.  His  Critique  of  the  Pure  Reason  was  fol- 
lowed in  1788  byaJ^nYzgite  of  the  Practical  Reason. 
As  the  first  presented  the  categories  and  formulas 
through  which  all  phases  of  existence  could  be 
known  in  thought,  the  second  presented  the  cate- 
gories and  formulas  through  which  existence  could 
be  known  in  experience.  What  is  thinkable  was 
the  subject  of  the  one;  what  is  observable,  of 
the  other.  |To  use  Kant's  own  expressions,  the 
one  deals  with  the  noumenal,  the  other  with  the 
phenomenal. 

Of  these  two  fields  of  speculation,  Kant's  most 
distinctive  work  was  done  in  the  former?'  By  tempera- 
ment and  training  he  was  a  closet  philosopher,  and  his 
genius  foimd  most  to  attract  it  in  what  was  remote 
from  the  thought  and  action  of  everyday  life.  Thus 
his  political  philosophy  was  far  stronger  in  its  analysis 
and  definition  of  the  ultimate  concepts  liberty,  law, 
rights,  state,  than  in  its  treatment  of  government  and 
administration.  Kant's  proper  field  was  obviously 
Staatslehre  rather  than  Staatsrecht  or  Politik.  In 
neither  branch  of  the  science,  however,  did  he  make 
any  original  contribution.  His  function  was  to  cast 
the  dominant  ideas  of  the  later  eighteenth  century  into 
the  categories  and  formulas  of  his  critical  philosophy. 
jjjs  doctrine  as  to  the  origin  and  nature  of  the  state 
is  merely  Rousseau's^;  put  into  the  garb  of  Kantian 
terminology  and  logic ;  ^lis  analysis  of  government 
follows    Montesquieu^  in    like    manner.    Kant's    ad- 


132  POLITICAL   THEORIES 

aA^  miration  for  these  two  French  writers  ^  was  deep  and 
unconcealed,  and  his  incorporation  of  their  ideas 
into  his  system  was  destined  to  promote  greatly  the 
influence  of  liberalism  when  the  Kantian  system  got 
a  firm  hold  on  intellectual  Germany. 

Kant's  political  philosophy  was  embodied  chiefly 
in  his  Metaphysical  First  Principles  of  the  Theory  of 
Law,  written  in  his  old  age  and  published  in  1796.^ 
A  year  earlier  some  phases  of  his  doctrine  were  pre- 
sented in  his  brochure  For  Perpetual  Peace. ^  A  brief 
summary  of  his  leading  ideas  will  show  how  far  from 
novel  they  were.'* 

Men  are  naturally  free  and  equal.  A  state  is  the 
product  of  a  contract  through  which  individuals  put 
their  inalienable  rights  under  the  guarantee  of  the 
people  (Volk).  The  people  only  is  the  sovereign  and 
the  supreme  law-maker;  the  general  will  is  the  ulti- 
mate source  of  law  —  is  itself  law.  A  constitution 
is  an  act  of  the  general  will  through  which  a  crowd 
(Menge)  becomes  a  people  {Volk).  There  are  three 
powers  in  every  state  —  the  sovereign  legislative 
{Herrschergewalt ;    Souverainetdt) ,    the   executive    and 

■-  1  Especially  Rousseau.  See  Paulsen,  Immanuel  Kant,  trans- 
lation, p.  39. 

2  Metaphysische  Anfangsgriinde  der  Rechtslehre.  This  con- 
stitutes Part  I  of  the  Metaphysische  Anfangsgriinde  der  Sittenlehre, 
of  which  Part  II  is  Tugendlehre.  The  Rechtslehre,  preceded  by 
Kant's  general  Einleilung  to  the  Sittenlehre,  has  been  translated 
by  W.  Hastie  with  the  title  The  Philosophy  of  Law  (Edinburgh, 
1887). 

'  Zum  ewigem  Frieden. 

*  A  very  systematic  presentation  of  Kantian  political  theory 
in  condensed  form  may  be  found  in  Levkovits,  Die  Staatslehre  avf 
Kantischer  Grundlage  (Berner  Studien  zur  Philosophie,  Band  XIV). 


FORMS   OF   STATE  133 

the  judicial ;  the  separation  of  the  first  two  in  exercise 
is  indispensable  to  hberty.  The  forms  of  state  are 
three  in  number  —  autocracy,  aristocracy  and  democ- 
racy ;  the  forms  of  government  are  two,  republican  and 
despotic,  according  as  there  is  or  is  not  a  separation 
of  the  legislative  and  the  executive  powers.  Any 
form  of  government  {Regierungsform)  that  is  not 
representative  Kant  declares  to  be  out  of  rational 
consideration  (ist  eine  Unform) ;  but  the  function  of 
representative  may  be  vested  in  king  or  nobility  as 
well  as  in  elected  deputies. 

(This  body  of  doctrine  is  obviously  an  attempted 
blend  of  Rousseau  and  Montesquieu.  If  such  a  blend 
were  logically  possible,  the  subtle  intellect  of  Kant 
might  be  expected  to  succeed  in  making  it.  But  the 
difficulties  are  too  great.  Upon  the  dogma  of  sover- 
eignty, absolute  and  indefeasible,  in  the  general  will 
of  the  community,  not  even  Kant's  compelling  logic 
can  base  three  forms  of  state.  There  is  no  room  — 
and  Rousseau  makes  this  clear  ^  —  for  any  such  con- 
cept as  autocracy  (monarchy)  or  aristocracy,  when 
the  general  will  is  sovereign.  Kant  sought  to  evade 
Rousseau's  conclusion  by  resort  to  the  dual  aspect 
of  philosophy.  The  sovereign  conceived  as  the  general 
will  was,  he  said,  a  concept  of  pure  reason  —  an 
abstraction,  a  "Gedankending.^'  To  give  it  objective, 
practical  reality,  it  must  be  expressed  in  physical  form, 
as  one,  or  few  or  many  persons.^  Such  an  explanation, 
however,  failed  to  sustain  his  case,  in  view  of  his 
repeated  attribution  of  sovereignty  to  the  people  ex- 

*  Supra,  pp.  22  et  seq.  »  Rechtslehre,  see.  51. 


134  POLITICAL  THEORIES 

clusively,  whatever  the  form  of  the  chief  of  the  state 
(Staatsoherhaupt) } 

Kant's  inconsistency  here  is  due  not  only  to  his 
respect  for  Montesquieu  but  also,  probably,  to  the 
fact  that  he  was  an  aged  professor  in  a  royal  university 
of  the  kingdom  of  Prussia.  It  was  hard  in  the  days  of 
Frederick  the  Great  and  his  successors  (as  indeed  it 
remained  to  the  end  of  the  monarchy)  for  a  loyal 
subject  of  the  HohenzoUems  to  think  of  a  king  as 
merely  a  chief  executive.  Few  philosophers  were  able 
to  free  themselves  from  the  idea  that  something,  at 
least,  of  sovereignty  inhered  in  the  monarch,  no  matter 
how  peremptorily  they  preached  the  absolute  supremacy 
of  the  people  or  the  nation  or  the  state. 

Kant's  weakness  at  this  point  leads  him  into  rather 
pitiable  confusion  in  several  places.  He  asserts  most 
explicitly  that  the  legislative  power  pertains  solely  to 
the  people,  yet  finds  room  for  a  ruler  of  the  peoplej 
{Beherrscher  des  Volks)  who  is  legislator,  not  adminis- 
trator, who  has  toward  the  people  rights  but  no  duties, 
and  whose  transgressions  of  the  constitution  are  above 
any  effective  control.^  Against  this  legislative  chief 
of  the  state  {das  gesetzgehende  Oherhaupt  des  Staats) 
there  is  no  right  of  resistance;  and  Kant  argues 
passionately  against  popular  revolution.  If  a  con- 
stitution is  defective,  changes  must  be  made  "only 
by  the  sovereign  itself,  through  reform,  not  by  the 

*  Rechtslehre,  sec.  52. 

^  In  the  Rechtslehre  compare  see.  46  with  see.  49A,  Hastie's 
EngUsh  version  contains  abundant  evidence  of  hard  labor  by  the 
translator  in  the  effort  to  make  the  passages  consistent.  At  some 
points  rather  daring  liberties  are  taken  with  the  original. 


KANTIAN   ETHICS  135 

people,  through  revolution."^  The  people  (Volk) 
ought  not  even  to  inquire  too  closely  about  the  origin 
of  the  supreme  power  {oherste  Gewalt),  no  matter  how 
it  came  into  being. 

The  inconsistency  and  incoherence  of  such  doctrine, 
which  so  severely  test  the  patience  of  reader  and  trans- 
lator, sprang  partly  from  the  conservatism  of  age, 
and  partly  from  the  philosopher's  natural  antipathy 
toward  turbulence  and  disorder.  Kant's  greatest 
influence  was  not  due,  however,  to  these  features  of 
his  system,  but  rather  to  the  exalted  idealism  of  the 
psychology  and  ethics  on  which  his  politics  immedi- 
ately depended.  His  dogmas  of  the  categorical  im- 
perative, the  autonomous  will  and  humanity  as  an  end 
in  itself,  sustained  a  closely  articulated  system  of 
principles  that  embodied  the  absolute  truth  at  the  basis 
of  morals,  law  and  politics.^  A  conclusion  of  the  pure 
reason  had  for  Kant  the  same  unconditional  validity 
that  the  "idea"  had  for  Plato.  The  element  of  will, 
however,  entered  very  largely  into  the  German's 
conception  and  distinguished  it  from  the  Greek's. 
Man  appeared,  abstractly  considered,  as  rational  will, 
free  and  self-sufficing.  Morality,  law  and  politics 
were  but  various  aspects  of  the  logical  process  through 
which  the  coexistence  of  two  or  more  free  rational 
wills  could  be  conceived.  Thus  a  supreme  maxim 
of  Kant's  practical  morality  was :  "  So  act  that  thy 
will  can  regard  itself  as  dictating  universal  laws"; 

*  " .  .  .  nur  vom  Souveran  selbst  dureh  Reform,  aber  nicht  vom 
Volk,  mithin  dureh  Revolution."     Rechtslehre,  sec.  49A,  end. 

*  Janet's  analysis  and  criticism  of  Kant's  ethics  is  admirable. 
Hist,  de  la  Science  Politique,  II,  574  et  aeq. 


136  POLITICAL  THEORIES 

that  is,  do  only  that  which  is  consistent  with  the  same 
action  by  every  other.  And  law  in  general  (Recht)  he 
said,  consisted  in  "the  possibility  of  hannonizing  a 
general  and  reciprocal  constraint  with  the  liberty  of 
each."  The  state,  therefore,  as  pure  idea,  is  con- 
ceivable only  through  a  formula  in  which  the  authority 
of  the  general  will  is  consistent  with  the  perfect  free- 
dom of  the  individual  will.  The  formula  is  the  social 
contract.  Only  through  this  is  the  jural  state  (Rechts- 
staat)  thinkable. 

Kant  thus  came  out  where  Rousseau  did,  but  his 
route  thither  was  far  longer  and  not  less  thorny. 
Throughout  his  wanderings  in  the  desert  of  meta- 
physical subtleties  the  pillar  of  cloud  and  fire  that 
unfailingly  guided  him  was  the  supreme  worth  and 
dignity  of  a  rational  being.  Liberty  and  equality, 
as  the  necessary  attributes  of  such  beings,  gleam 
brightly  through  the  murkiest  depths  of  his  Staatslehre. 
And  while  he  assigned  proper  weight  and  significance 
to  society  and  state  and  people,  as  collective  entities, 
it  was  the  reason-endowed  individual  with  the  autono- 
mous will  that  was  salient  in  his  philosophy.  The 
whole  trend  of  Kant's  influence,  in  political  speculation 
at  least,  was  individualistic ;  and  one  of  the  entertain- 
ing episodes  in  a  field  that  hardly  aboimds  in  amuse- 
ment was  the  astonishment  of  the  arch-individuaUst 
of  the  nineteenth  century,  Herbert  Spencer,  on  dis- 
covering that  one  of  his  most  laboriously  worked-out 
dogmas  had  been  anticipated  by  the  (to  him)  unknown 
German  philosopher.^ 

^  Spencer,  Justice  (1891),  Appendix  A. 


A  PRACTICAL  IDEALIST  137 

2.  Johann  Gottlieb  Fichte 

Fichte,  the  brilliant  but  short-lived  (1762-1814) 
successor  to  Kant  in  philosophical  preeminence  in 
Germany,  presented  the  same  ideahzing  method  as 
his  master.  The  world  of  thought  and  the  world  of 
sense  were  distinct  realms,  and  the  former  was  in  last 
analysis  reality.  Fichte's  dialectic  subtlety  was,  if 
possible,  more  refined  than  Kant's,  and  his  criticism 
and  modification  of  the  latter's  metaphysics  made 
a  sensation  in  the  learned  circles  of  Germany.^  In 
social  and  political  speculation  Fichte's  ideas  were 
very  greatly  influenced  by  the  events  of  external 
history.  He  was  far  less  a  closet  philosopher  than 
Kant,  and  his  pen  was  very  active  in  connection  with 
the  practical  questions  of  the  day.  Because  of  the 
suspicion  engendered  by  his  views  on  religion  and 
politics  he  was  forced  to  leave  his  position  at  the 
University  of  Jena,  in  Saxony.  Received  into  Prussian 
educational  circles,  he  shared  with  his  new  people 
the  disasters  of  the  Napoleonic  conquest,  becom- 
ing eventually  professor  in  the  newly  established 
University  of  Berlin.  In  the  deep  movement  of  na- 
tional feeling  that  led  to  the  overthrow  of  the  French 
Fichte's  influence  was  important ;  ^  his  untimely 
death  came  with  the  triumph  of  the  cause  he  had 
promoted. 

The  experiences  of  his  personal  career  are  readily 
traceable  in  their  influence  on  his  political  theories. 
His  earlier  writings  include  a  justification  of  the  French 

'  Adamson,  Fichte,  passim.  ^  Infra,  p.  145. 


138  POLITICAL   THEORIES 

Revolution,^  m  popular  style,  and  a  systematic  treatise 
on  political  science,^  containing  his  whole  theory  of 
state  and  government.  In  these  works  his  doctrines 
are  substantially  those  of  Rousseau,  with  less  deviation 
than  Kant  made.  Fichte's  -later  works,  however, 
show  a  notable  shifting  of  interest.  While  the  in- 
dividual and  his  rights  had  been  at  first  the  central 
point  of  the  theory,  the  people  (Volk)  and  the  nation 
now  take  that  position.  In  Fichte's  Closed  Commercial 
State  ^  and  in  his  last  lectures  on  the  Theory  of  the 
State  *  there  is  set  forth  an  elaborate  theory  of  state- 
socialism  and  of  a  national  state.^ 

Fichte's  political  science  starts  with  the  rational  self- 
consciousness  of  the  individual.  He  demonstrates  that 
consciousness  of  self  necessarily  implies  consciousness  of 
other  like  beings  and  of  a  relation  between  the  self  and 
the  others.  This  relation  is  the  basis  of  Recht — a  word 
that  must  be  translated  in  this  place  rather  "social  regu- 
lation "  than  "law."  It  consists  in  the  recognition  by  a 
free  rational  being  that  its  freedom  is  limited  by  the  idea 
(Begriff)  of  the  freedom  of  others.  This  idea  of  social 
regulation  {Rechtsbegriff)  is  not  to  be  thought  of,  Fichte 
holds,  as  a  product  of  experience  or  education ;  it  is  in- 
herent in  the  consciousness  of  every  rational  being.* 

*  Beitrdge  zur  Berichtigung  der  Urteile  des  Publikums  uber  die 
franzosische  Revolution  (1793),  in  Werke,  Band  VI. 

2  Grundlage  des  Naturrechts  (1796),  in  Werke,  Band  III. 

'  Der  geschlossene  Handehstaat  (1800),  in  Werke,  Band  III. 

<  Die  Staatslehre  (1813),  in  Werke,  Band  IV. 

*  For  a  clear  and  interesting  account  of  the  currents  in  Fichte's 
philosophy  as  disclosed  in  these  works  see  Bluntschli,  Geschichte, 
414  et  seq. 

^  "Deduction  des  Begriffes  vom  Rechte"  is  the  subject  of  the 
Erstes  Hauptstiick  of  his  Grundlage  des  Naturrechts. 


FICHTE   AND   ROUSSEAU  139 

Having  deduced  the  relation  of  beings  considered 
as  merely  intelligences,  he  proves  with  like  formaUsm 
that  material  bodies  are  inevitable  appurtenances  of 
such  beings,  making  them  persons,  and  complicating 
the  problem  of  their  reciprocal  freedom.  This  problem, 
reached  after  the  philosopher's  wide  rambles  in  meta- 
physics, is  the  familiar  one  with  which  Rousseau  opens 
his  Contrat  Social,^  though  the  striking  metaphor 
of  the  Genevese  is  not  suggested  in  the  cold  phrase 
of  the  German  :  "How  is  a  community  of  free  beings 
as  such  possible  ?  "  The  answer  is  Rousseau's  :  through 
a  social  contract,  effecting  a  union  of  wills  and  main- 
taining the  autonomy  of  each. 

Fichte  departs  from  the  usual  doctrine,  however, 
in  respect  to  natural  rights  and  the  state  of  nature. 
There  is  no  presocial  state  of  nature,  he  holds,  in  which 
men  possess  natural  rights.  "The  state  (Staat)  itself 
is  men's  natural  condition  (Natur stand)."  There  is 
indeed  no_  such  thing  as  natural  rights  (Urrechte),  in 
the  plural.  Only  natural  right  (Urrecht),  in  the  singular, 
is  a  rational  concept ;  and  this  he  defines  as  "the  ab- 
solute right  of  the  person  to  be  in  the  world  of  sense 
only  cause  and  never  effect"  —  a  conception  which 
is  identical,  he  explains,  with  that  of  an  absolute  will.^ 

Fichte's  doctrine  thus  is,  that  personality  necessarily 
implies  the  untrammelled  activity  of  the  rational  will. 
Restriction  of  that  activity  is  conceivable  only  as  self- 
restriction.    This    is   the    dictum    of   pure   thought. 

*  Supra,  p.  16. 

*  " .  .  .  das  absolute  Recht  der  Person,  in  der  Sinnenwelt  nur 
Uraache  zu  sein  (schlechthin  nie  Bewirktes)."    Werke,  III,  113-119. 


140  POLITICAL  THEORIES 

The  realization  of  this  idea  in  the  world  of  sense 
requires  a  formula  of  action  through  which,  as  he 
expresses  it,  a  will  is  produced  "in  which  private  will 
and  general  will  are  synthetically  united."  The  terms 
of  this  synthesizing  process  are  those  of  Rousseau's 
contract.  But  Fichte  carries  his  analysis  of  the 
contract  to  a  refinement  that  would  have  made  Rous- 
seau stare  and  gasp.  Three  distinct  agreements  are 
shown  to  be  involved  in  the  social  pact.  By  a  very 
bold  and  striking  generalization  Fichte  includes  the 
whole  sphere  of  individual  freedom  under  the  concept 
"property,"  which  he  defines  as  "rights  of  free  action 
in  the  world  of  sense."  ^  The  precise  boundary  to 
the  property  of  each  is  fixed  by  a  first  contract  of  each 
with  all.  Each  abandons  his  claim  to  what  lies  outside 
of  a  certain  sphere,  on  condition  that  all  abandon  their 
claims  to  what  lies  within  that  sphere.  This  property 
x ,  contract  (Eigenthumsvertrag)  is  followed  by  the  pro- 
tection contract  (Schutzvertrag) ,  by  which  each  agrees 
to  contribute  his  share  of  the  force  necessary  to  maintain 
the  partitions  established  by  the  former  agreement. 
Then  comes  a  third  pact  by  which  each  agrees  with 
each  to  unite  into  a  whole  for  the  effective  accomplish- 
ment of  the  ends  involved  in  the  prior  contracts.  This 
union  contract  (Vereinigungsvertrag)  completes  the  social 
pact  (Staatshilrgervertrag)  and  constitutes  a  sovereign. 
Fichte  takes  great  pains  to  avoid  the  idea  that  the 
individual  is  merged  entirely  in  the  sovereign  state. 

'"Rechte  auf  freie  Handlungen  in  der  Sinnenwelt."  Werke,  III, 
195.  For  Locke's  similar  idea  see  Political  Theories  from  Luther  to 
Montesquieu,  p.  346,  note. 


FUNCTION   OF   THE   STATE  141 

[Rousseau's  dictum  that  each  gives  up  himself  and  all 
his  possessions,  is  vigorously  repudiated.^  Protection 
of  the  rights  that  make  up  the  individual  is  to  Fichte 
the  function  of  the  state,  and  beyond  what  is  given  up 
as  indispensable  to  the  realization  of  this  function  the 
sphere  of  individuality  remains  intact. 

To  determine  with  some  precision  what,  on  grounds 
of  pure  reason,  is  included  in  the  scope  of  the  state's 
function,  especially  in  the  matter  of  trade  (Handel), 
is  the  purpose  of  Fichte 's  Closed  Commercial  State. 
He  rejects  emphatically  the  idea  that  the  end  of  the 
state  is  "to  make  men  happy,  rich,  healthy,  orthodox, 
virtuous  and,  God  willing,  saved  eternally."  On  the 
other  hand  he  likewise  denies  what  he  had  earlier 
asserted,  or  appeared  to  assert,  that  it  is  the  function 
of  the  state  "merely  to  preserve  and  protect  each  in 
his  personal  rights  and  his  property."  His  contention 
now  is  that  individual  property  has  no  existence  save 
through  the  state,  and  that  the  true  formula  for  the 
function  of  the  state  is  this :  "To  give  to  each  for  the 
first  time  his  own,  to  install  him  for  the  first  time  in 
his  property,  and  then  first  to  protect  him  in  it."  ^ 

What  is  meant  by  giving  to  each  his  own  is  eluci- 
dated in  a  curious  theory  of  economic  organization. 
In  any  society,  Fichte  declares,  the  division  of  pro- 
ductive activities  among  various  classes  —  farmers, 
artisans,  merchants  —  rests  upon  contract  of  each  class 
with  every  other  class,  and  within  each  class,  of  each 


»  Werke,  III,  205. 

*  The  Geschlossene  Handelsstaat  is  in  Werke,  Bd.  Ill,  pp.  389-513. 
For  the  passages  above  see  Buch  i,  Cap.  i. 


142  POLITICAL  THEORIES 

individual  with  his  fellows.  The  substance  of  these 
various  contracts  is  that  the  parties  refrain  from 
encroaching  on  one  another's  special  field.  As  a  result, 
the  sphere  of  free  activities  is  divided  mong  all  the 
individuals,  and  the  share  that  comes  to  each  is  his 
property,  in  the  scientific  sense  of  the  term.  These 
individual  properties  must  for  any  particular  occupation 
be  precisely  equal  in  value,  as  Fichte  proves  by  elemen- 
tary mathematics.  The  total  value  of  any  occupation 
is,  he  says,  the  sum  of  satisfactions  {Annehmlichkeit 
des  Lehens)  resulting  from  it.  Divide  this  sum  by  the 
number  of  individuals  in  that  field,  and  the  quotient 
is  what  belongs  to  each.  The  shares  may  be  larger 
or  smaller  according  to  circumstances,  but  it  is  incon- 
ceivable that  they  ever  under  given  circumstances 
differ  from  one  another.^ 
1 1  By  this  reasoning  Fichte  establishes  the  meaning  of 
his  dogma  that  the  state  must  give  to  each  his  own. 
It  must  secure  to  every  individual  that  share  of  satis- 
factions which  is  his  according  to  the  principles  above 
laid  down.  In  the  Closed  Commercial  State  the 
philosopher  deduces  the  industrial  and  commercial 
system  through  which  alone,  in  the  view  of  pure 
reason,  this  purpose  can  be  fulfilled.  The  state  must 
adjust  in  proper  proportions  the  three  chief  classes 
of  producers  —  (1)  farmers,  miners  and  the  like, 
(2)  artisans  and  (3)  merchants,  limiting  each  to  a  fixed 
number  of  individuals ;  must  insure  to  each  individual 
a  proportionate  share  of  all  the  raw  and  manufactured 
products  of  the  country;    must  for  this  purpose  fix 

^  Handelsstaat,  1,  i,  2. 


A   SELF-SUFFICING   STATE  143 

and  maintain  the  relative  value  and  money  price  of  all 
these  commodities ;  and  finally,  as  absolutely  indis- 
pensable to  the  foregoing  ends,  must  render  impossible 
direct  trade  between  citizens  and  the  foreign  world.^ 
So  far  as  commerce  with  other  peoples  may  be 
deemed  desirable,  it  must  be  carried  on  by  the  state 
itself. 

These  are  astonishing  conclusions  to  be  derived 
from  the  strongly  individualistic  premises  of  Fichte's 
philosophy.  He  was  turned  in  this  unexpected  di- 
rection not  only  by  the  idealizing  spirit  that  produced 
a  like  doctrine  in  Plato,  but  also  by  a  consciousness  of 
the  economic  influences  that  underlay  the  developing 
idea  of  a  national  state.  Indeed,  though  he  did  not 
cease  to  insist  that  his  Closed  Commercial  State  was 
a  concept  of  the  pure  reason  {Vernunftstaat) ,  he  set 
forth  very  clearly  the  concrete  conditions,  historical 
and  contemporaneous,  that  bore  upon  its  objective 
realization.  To  be  economically  exclusive  and  self- 
sufficing,  he  argued,  was  of  precisely  the  same  signifi- 
cance politically  as  to  be  exclusive  and  independent  in 
legislation  and  judicature.  Christian  Europe  was 
originally  a  political  unit  with  a  common  government, 
a  common  law,  and  appropriately  enough,  general 
freedom  of  commerce.  The  modern  states  have  arisen 
through  the  creation  of  separate  governments  and 
distinct  systems  of  law;  but  the  corresponding  dif- 
ferentiation of  commercial  relations  has  not  been 
reached.  The  idea  that  men  shall  freely  trade  with 
one  another,  regardless  of  their  political  allegiance,  is 
1  Werke,  III,  44a 


144  POLITICAL   THEORIES 

a  relic  of  an  outgrown  past.-^  What  is  suitable  to  the 
present,  Fichte  argues,  is  an  economic  solidarity  and 
exclusiveness  among  fellow-citizens  no  less  perfect 
than  the  governmental  exclusiveness  already  attained 
The  geographic  basis  of  such  a  state,  Fichte  found 
indicated  by  nature  herself.  "Certain  parts  of  the 
earth's  surface,  with  their  inhabitants,  are  evidently 
determined  by  nature  to  form  political  units."  ^  Set 
off  by  seas,  rivers  or  impassable  mountains,  and  em- 
bracing diversities  of  soil  adapted  to  produce  all 
desirable  varieties  of  goods,  such  a  region  should  be 
the  situs  of  a  self-sufficing  community.  This,  Fichte 
declared,  was  the  point  of  view  from  which  to  perceive 
the  true  meaning  of  the  term  "natural  boundaries," 
so  common  in  modern  politics.  It  means  not,  as 
commonly  used,  the  line  best  adapted  to  military  ends, 
but  rather  the  line  that  marks  the  bounds  of  economic 
independence  and  self-sufficiency.  Such  boundaries 
a  state  must  have  —  no  more,  no  less.  Shut  up  within 
them  and  rigidly  excluding  the  poison  of  unregulated 
intercourse  with  citizens  of  other  communities,^  a 
people  will  realize  the  ends  of  a  rational  state  (Ver- 
nunftstaat).  Wars  will  cease.  It  has  long  been  the 
privilege  of  philosophers,  says  Fichte,  to  sigh  over  war. 

1  "AUe  Einrichtungen  welche  den  unmittelbaren  Verkehr  eines 
Burgers  mit  dem  Burger  eines  anderen  Staates  erlauben  oder 
voraussetzen,  betrachten  im  Grunde  beide  als  Burger  eines  Staats, 
und  sind  Ueberbleibsel  und  Resultate  einer  Verfassung  die  langst 
aufgehoben  ist,  sind  in  unsere  Welt  nicht  passende  Tbeile  einer 
vergangenen  Welt."  —  Werkc,  III,  453-4. 

2  Handelsstaat,  Buch  III,  Cap.  iii. 

^  Foreign  travel  must  be  prohibited  except  to  highly  qualified 
persons  (der  Gelehrte  und  der  hohere  Kiinsller),  duly  authorized  by 
the  government.  —  Handelsstaat,  Buch  iii,  Cap.  vii. 


FICHTE'S  STATE   SOCIALISM  145 

:  End  world-commerce,  with  the  ambitions  and  rivalries 
engendered  by  it  in  the  nations,  and  the  most  prolific 
source  of  war  will  disappear.^  Freed  from  the  tale  of 
distractions  and  woes  from  this  source,  the  closed 
commercial  state  will  give  full  scope  to  the  capacity 
that  it  has  for  comfort  and  culture,  and  will  surely 
guarantee  to  every  individual  citizen  that  which  in 
the  profoundest  sense  is  his  own. 

In  his  later  years  Fichte  carried  his  socialistic 
doctrines  equally  far  in  another  direction.  He  still 
insisted  on  the  duty  of  the  state  to  guarantee  the 
citizen's  material  existence,  and  he  declared  categor-l 
ically  that  the  government  must  insure  to  each  the 
opportunity  to  work  for  a  living,  while  insuring  at  the  | 
same  time  that  each  do  his  share  of  the  work  provided :  | 
there  must  be  neither  pauper  nor  idler  in  the  rational 
state.^  But  a  different  aspect  of  life  from  the  physical 
engaged  the  philosopher's  interest.  After  Prussia 
was  crushed  and  dismembered  by  Napoleon  in  1806- 
1807  Fichte  joined  eagerly  in  the  search  for  the  explana- 
tion of  so  astounding  a  calamity.  He  found  it  in  the 
lack  of  a  clear  political  consciousness  in  the  conquered. 
His  famous  "Addresses  to  the  German  People,"^ 
set  forth  an  exalted  conception  of  the  character  and 
mission  of  the  Germans,  with  eloquent  appeals  for 
political  and  educational  institutions  suited  to  the 
realization  of  this  mission.  Under  the  influence  of  his 
interest  in  Prussia's  revival  his  scientific  conception 

*  Handelsstaat,  Buch  iii,  Cap.  iii.  2  c/,  Werke,  III,  214. 

^  Reden  an  die  deutsche  Nation,  In  Werke,  Bd.  VII.     See  infra, 
ohap.  viii. 


146  POLITICAL  THEORIES 

of  the  state  was  transformed  to  correspond.  Not 
the  mere  man,  but  the  trained  man  —  the  man  of 
complete  moral  and  intellectual  culture  —  must  be, 
Fichte  now  held,  the  center  of  political  theory,  and  the 
development  and  protection  of  such  individuals  must 
be  the  real  function  of  the  state.  Fichte's  elaboration 
of  this  idea,  with  the  conception  of  the  government 
as  primarily  an  educational  institution,  runs  parallel 
in  many  places  with  the  lines  of  Plato's  Republic. 
From  such  places  the  individualism  of  Fichte's  early 
philosophy  seems  remote  indeed. 

In  respect  to  government  and  constitution,  as  dis- 
tinct from  state  {Staatsrecht  as  distinct  from  Staatslehre) , 
Fichte's  doctrines  were  more  consistent  and  coherent 
than  Kant's.  Legislation  (Gesetzgehung)  was  to  Fichte 
as  to  Rousseau  a  term  denoting  exclusively  the  will 
of  the  sovereign  people.  The  executive  function 
included  the  judicial,  and  must  necessarily  be  ex- 
ercised by  representatives,  constituting  the  govern- 
ment (Regierung).  The  government  might  be  either 
monarchic  or  aristocratic,  hereditary  or  elective;  it 
could  never  be  democratic,  that  is,  the  people  as  a 
whole  could  not  act  as  administration.  To  insure  that 
the  sovereign  will  of  the  people,  as  embodied  in  the  laws 
(Gesetze)  forming  the  constitution,  should  not  be 
overridden  by  the  government,  Fichte  conceived  an 
institution  named  the  ephorate  that  he  regarded 
as  indispensable  to  a  rational  constitution  (vernunft- 
und  rechtmdssige  Staatsverfassung)}  The  right  of  final 
judgment  upon  the  conduct  of  the  government  must 

1  Werke,  III,  160,  171. 


FICHTE'S  EPHORATE  147 

inhere  necessarily  in  the  people  as  a  whole.  To 
assign  to  any  organ  of  the  government  the  function 
of  deciding  whether  the  laws  were  being  properly 
administered,  would  be  to  make  that  organ  supreme; 
to  assign  to  any  organ  even  the  function  of  deciding 
when  the  people  should  be  called  upon  to  express 
their  opinion  upon  the  situation,  would  have  the  same 
tendency  to  exalt  the  government  over  the  sovereign. 
Hence  the  need  for  a  body  of  ephors,  wholly  distinct 
from  the  government,  and  having  no  other  duty  than 
that  of  setting  in  motion,  at  the  time  they  judged  proper, 
the  machinery  through  which  the  will  of  the  sovereign 
people  as  to  the  constitution  and  laws  can  be  expressed. 
Such  was  Fichte's  contribution  to  the  solution  of 
the  much  debated  problem,  how  to  keep  the  govern- 
ment in  accord  with  the  constitution  without  permitting 
any  branch  of  the  government  to  shape  the  constitution 
at  its  will.  That  his  ephors  would  not  solve  the 
problem  is  suggested  by  what  we  know  of  Sparta, 
whence  the  very  name  was  derived.  The  Spartan 
ephors  became  practically  the  supreme  power  in  the 
state.^  Fichte  himself  in  his  later  years  lost  confidence"^ 
in  his  ephorate  as  a  practical  means  of  preserving  the 
constitution,  and  found  nothing  to  suggest  in  its  place 
but  the  purely  ideal  conception  that  the  functions  of 
government  should  be  entrusted  only  to  all-wise 
philosophers,  whose  pure  and  unerring  intelligence 
would  never  deviate  from  the  straight  line.  ^  -^ 

*  Political  Theories,  Ancient  and  Medieval,  p.  10.  Ephors  had 
figured  in  the  theory  of  Althusius,  but  with  a  function  only  slightly 
resembling  that  assigned  to  them  by  Fichte.  Pol.  The.  jrom  Luther 
to  Montesquieu,  p.  64. 


148  POLITICAL  THEORIES 

One  source  of  Fichte's  difficulties  at  this  point  was 
the  same  that  made  trouble  for  Kant  —  the  inde- 
pendent position  of  the  hereditary  monarch.  Where 
such  an  institution  existed,  if  part  in  the  constituent 
function  were  permitted  to  the  government,  the 
supreme  law  would  tend  to  be  at  the  mercy  of  the 
prince.  How  real  the  logical  need  was  for  such  an 
organ  as  Fichte's  ephors  were  intended  to  be,  may  be 
estimated  by  reflection  upon  the  constitution-making 
influence  actually  exerted  by  two  famous  governmental 
bodies  much  less  powerful  a  priori  than  a  princely 
executive  —  the  British  Parliament  and  the  Supreme 
Court  of  the  United  States. 

3.    Wilhclm  von  Humboldt 

Before  Fichte  worked  out  his  system  of  extensive 
state  activity,  a  noteworthy  theory  in  the  diametrically 
opposite  sense  was  formulated  by  the  elder  of  the 
famous  Humboldt  brothers.  His  Ideas  for  an  Attempt 
to  determine  the  Limits  of  the  Activity  of  the  State  ^  was 
written  and  parts  of  it  were  published  in  1792,  when 
the  author  was  but  twenty-five  years  old^  In  his 
later  career,  as  a  power  in  the  Prussian  government, 
he  lost  confidence  and  interest  in  the  product  of  his 
irresponsible  youthful  enthusiasm,  and  the  complete 
essay  did  not  see  the  light  till  1851,  long  after  his 
death.^  Though  thus  repudiated  in  a  way  by  its 
author,  the  little  book  has  a  real  significance  in  the 

^  Ideen  zu  einem  Versuch  die  Grdnzen  der  Wirksamkeit  des  Staats 
zu  bestimmen. 

*  See  Cauer's  Einleitung  to  the  Ideen  (Breslau,  1851). 


STATE  NOT  END   IN   ITSELF  149 

history  of  political  theory.  It  embodies  a  very  full 
and  systematic  expression  of  ideas  that  were  closely 
involved  in  the  philosophy  of  the  time  when  the 
essay  was  written,  and  that  were  on  the  verge  of 
widespread  acceptance  when  it  was  finally  published.^ 

Humboldt  assumes  without  discussion  the  Kantian 
view  as  to  the  origin  of  the  state  in  a  contract  between 
men  for  their  respective  benefit.  What  he  emphasizes 
and  reiterates  is,  that  the  political  union  thus  created 
is  merely  a  means  —  one  among  many  —  for  the  pro- 
motion and  realization  of  human  welfare.  The  state 
is  not  an  end  in  itself.  It  must  subserve  the  end  of 
man ;  and  the  end  of  man  is,  the  highest  and  best- 
proportioned  development  of  his  powers  to  a  whole .^ 
What,  then,  can  the  state  contribute  to  this  develop- 
ment? Shall  it  take  the  individual  in  hand  and 
guide  him  along  carefully  prescribed  paths  to  his  goal  ? 
Or  shall  it  leave  him  to  find  his  own  path  and  make 
his  own  way?  This  latter,  Humboldt  answers,  is 
the  true  principle;  and  his  essay  aims  to  establish 
it  on  the  firmest  rational  grounds. 

The_^full  development  of  humanity  depends,  so  his 
argument  runs,  on  the  fullest  possible  development 
of  the  individual  man.  This  in  turn  depends  upon  the 
^  unrestricted  play  of  the  powers  and  faculties  peculiar 
to  each  {Eigenthumlichkeiten) .  Liberty,  in  this  sense, 
is  the  condition  of  progress.  No  obstacle  due  to  the 
forces  of  physical  nature  will  fail  to  yield  in  time  to 

^  It  is  an  interesting  coincidence  that  Herbert  Spencer's  earliest 
exposition  of  laissez-faire,  the  Social  Statics,  appeared  in  1850. 
2  Ideen,  p.  9. 


150  POLITICAL   THEORIES 

the  art  and  energy  of  men  acting  freely  either  singly 
or  in  voluntary  cooperation.  Only  those  obstacles 
to  progress  that  arise  out  of  the  domineering  pro- 
pensities of  men  require  for  their  removal  a  power 
that  can  and  will  constrain  the  action  of  the  individual. 
Such  a  power  is  the  state.  It  is  necessary,  inasmuch 
as  the  collisions  of  indixdduals  seeking  unlimited  self- 
expression  would  be  fatal  to  the  ends  of  all  of  them. 
At  the  same  time  it  is  an  evil,  because  it  interferes 
with  that  freedom  which  is  the  condition  of  full  develop- 
ment in  each.  \The  problem  then  is,  to  determine  how 
this  necessar}^  e\'il,  the  state,  is  to  be  made  most  con- 
tributory, or  more  exactly,  least  detrimental  to  human 
advancement. 

Humboldt's  solution  is  that  the  action  of  the  state 
shall  never  extend  to  the  positive  promotion  of  the 
welfare  of  its  citizens^but  shall  be  confined  to  a  nega- 
tive role,  namely,  that  of  providing  for  their  security 
(Sicherheit) .  His  demonstration  of  this  doctrine,  both 
in  the  abstract  and  the  concrete  aspects,  covers  sub- 
stantially all  that  has  ever  been  urged  in  support  of 
it.  Against  intervention  by  the  state  for  the  positive 
promotion  of  indi\ndual  welfare,  he  urges  that  it  tends 
to  produce  a  depressing  uniformity  among  the  citizens, 
to  weaken  their  powers,  to  obstruct  the  proper  reaction 
of  the  material  environment  upon  their  spirit  and 
character,  to  divert  their  energy  from  self -development 
and  waste  it  on  the  prescription  of  rules  for  others, 
and  in  other  ways  to  hinder  that  exercise  of  idiosyncrasy 
which  is  the  key  to  progress.  On  one  or  another  of 
these  grounds  Humboldt  insists  that  the  state  must 


SPHERE    OF   THE   STATE  151 

refrain  from  concern  in  education,  in  religion,  in  the 
improvement  of  morals  {Sittenverbesserung)  —  in  short 
from  all  activity  designed  to  influence  the  character 
of  the  people  (Nation).  Effects  upon  the  popular 
spirit  will  flow  indirectly  from  the  legitimate  operation 
of  government;    these  should  be  all. 

The  legitimate  sphere  of  the  state  is  solely  the  care 
for  the  security  of  the  citizens.  By  security  he  means 
"certainty  of  lawful  liberty"  {Gesetzmdssige  Freiheit), 
that  is,  certainty  that  the  use  of  one's  powers  and  the 
enjoyment  of  one's  property  will  not  be  wrongfully 
(Widerrechtlich)  obstmcted.^  The  criterion  of  state 
intervention  must  be  necessity,  not  expediency. 
Danger  to  security  may  come  from  without  or  from 
within  a  society,  and  the  field  of  state  action  is  accord- 
ingly twofold.  War  in  defence  of  the  community  is 
one  of  its  appropriate  activities;  and  war,  with  all 
its  objectionable  incidents,  Humboldt  regards  as  a 
very  salutaiy  influence  in  the  development  of  human 
character.^  On  the  side  of  internal  security  the  func- 
tions of  the  state  are  limited  to  those  that  fall  into 
the  four  categories,  police  law  (Polizeigesetze) ,  private 
law  (Civilgesetze) ,  the  regulation  of  judicial  procedure 
(Prozessordnung) ,  and  criminal  law  (Kriminalgesetze) , 
together  with  the  guardianship  of  helpless  minors 
and  the  insane.    The  rule  throughout  all  these  classes 


1  Ideen,  p.  103. 

2  ".  .  .  ist  mir  der  Krieg  eine  der  heilsamsten  Erscheinungen  zur 
Bildung  des  Menschengesehleehts  und  ungern  seh'  ich  ihn  nach 
und  nach  immer  mehr  vom  Sehauplatz  zuriiektreten."  Ideen,  p. 
48.  But  the  state  must  not  actively  either  encourage  war  or  hinder 
it.  —  P.  52. 


152  POLITICAL   THEORIES 

must  be  that  the  scope  of  governmental  intervention 
is  determined  solely  by  what  is  necessaiy  for  the  pro- 
tection of  individuals  in  person  and  property. 

This  conception  of  the  state  Humboldt  presents 
frankly  as  an  ideal  —  a  product  of  pure  reason,  not 
known  to  experience  and  not  likely  to  be  realized.-^ 
It  is  an  ideal  of  liberty ;  and  men  in  general  tend  to 
feel  more  interest  in  dominion  {Herrschaft) .  The  strong 
man  builds  up  a  far-reaching  government  out  of  the 
sheer  exuberance  of  his  powers ;  the  weak  man  is 
proud  to  be  part  of  the  mighty  machine.^  Until  a 
society  is  ripe  for  liberty  —  until  men  show  that  their 
fetters  chafe  them,  it  is  futile  to  press  a  free  con- 
stitution upon  them.  A  taste  for  liberty  may  be 
stimulated  by  the  gradual  extension  of  opportunities 
to  enjoy  it ;  but  the  abi*upt  transformation  of  institu- 
tions does  not  appeal  to  Humboldt.  Reform,  not 
revolution,  is  his  way  of  introducing  higher  ideas; 
and  reform  is  to  be  not  compulsory,  but  voluntary 
—  is  to  express  primarily  the  feelings  and  ideas  of  the 
people,  not  the  will  of  the  government.  The  essay 
is  pervaded  with  the  author's  conviction  that  political 
authority  not  only  ought  to  be,  but  in  fact  actually 
has  been,  of  minor  importance  in  the  development 
of  mankind.  The  constitution  of  the  state,  he  declares, 
is  subsidiary  to  the  social  union  {Nationalverein),^ 
from  whose  manifold  activities  spring  the  greatest 
advantages  of  life.    In  the  unobtrusive  working  of 

» Ideen,  pp.  175-177.  2  Ibid.,  p.  182. 

'  "  Die  Staatsverfassung  und  der  National  verein  soil  ten  .  .  .  nle 
mit  einander  verwechselt  werden."     Ideen,  p.  176. 


HUMBOLDT'S  INDIVIDUALISM  153 

social  forces  the  spirit  and  power  of  a  people  are 
expressed,  and  history  shows  that  all  great  political 
revolutions  spring  from  antecedent  changes  in  this 
spirit  and  this  power. ^  Experience  teaches  the  same 
lesson  as  pm-e  reason,  that  the  progress  of  mankind 
is  not  dependent  upon  far-reaching  governmental 
activity. 

Humboldt's  theory,  taken  as  a  whole,  is  a  synthesis 
of  many  elements  that  preceding  thinkers  had  wrought 
out  separately.  On  grounds  of  theory  similar  to 
his  Milton  had  excluded  government  from  interference 
with  the  citizen's  expression  of  opinion,  Locke  had 
excluded  it  from  interference  with  the  citizen's  material 
property,  Voltaire  and  a  host  of  others  had  excluded 
it  from  interference  with  his  religious  worship,  the 
Physiocrats  and  economists  had  excluded  it  from 
interference  with  his  industrial  and  commercial  life. 
All  these  were  combined  in  Humboldt's  theory,  and 
were  based  logically  upon  the  dogma  of  the  dignity 
and  worth  of  man  as  man  —  a  dogma  that  had  played 
a  part  in  most  of  the  early  individualistic  philosophy. 

It  is  to  be  noticed,  however,  that  Humboldt,  Uke 
his  predecessors,  while  preaching  individualism,  did 
not  preach  democracy.  He  thought  of  government 
as  something  outside  of  the  socially  organized  people, 
not  conceivably  part  and  parcel  of  it.  Even  while 
formally  accepting  the  dogma  of  the  social  contract, 
he  shows  no  consciousness  that  the  dogma  entails 
the  possibility  that  state  activity  may  mean  self- 
activity,  and  restriction  upon  government  may  be 

1  Ideen,  pp.  178-9. 


154  POLITICAL  THEORIES 

self-imposed  restrictions  upon  the  individual.  Hum- 
boldt's individualism  was  in  part  that  of  the  intellectual 
aristocrat,  resenting,  like  Milton,  Voltaire  and  les 
philosophes,  the  authority  of  lesser  men  who  happened 
to  possess  political  power,  and  in  part  that  of  the 
Prussian  subject,  unconsciously  determined  in  his 
philosophy,  like  Kant  and  Fichte,  by  the  actualities 
of  the  regime  of  the  Hohenzollerns.^ 

4.   Georg  Wilhelm  Friedrich  Hegel 

The   climax   of  the   German  idealism  in  political 

philosophy  was  reached  in  the  speculation  of  Hegel. 

The  extraordinary  genius  of  this  thinker  produced  a 

system  that  surpassed  in  breadth  and  profundity  those 

of  even  Kant  and  Fichte.     Like  those  two  predecessors, 

Hegel  developed  his  political  principles  as  part  of  a 

comprehensive  system  of  philosophy.     There  was  that 

in  his  system,  however,  which  gave  it  a  strongly  marked 

individuality  and  caused  it  to  wield  an  influence  in 

political   science   that   long   outlasted    others.      The 

great  distinguishing  mark  of  the  Hegelian  system  was 

the  evolutionary  and  historical  spirit  that  pervaded 

it.    This  element  made  it  more  acceptable  to  the 

nineteenth  century,  during  which  the  confidence  of 

the  preceding  century  in  fixedness  and  rigidity  passed 

steadily  away.      The  philosophy  of  history,  in  which 

'  Humboldt  was  made  Prussian  Minister  of  Culture  and  Educa- 
tion in  1809,  and  in  this  capacity  conducted  governmental  activities 
that  his  theories  condemned  as  deleterious.  It  is  one  of  the  oddi- 
ties of  history  that  the  philosopher  who  so  skilfully  exposed  the 
evils  of  state  interference  in  education  (Ideen,  pp.  56-60)  should 
have  been  chiefly  instrumental  in  the  founding  of  that  remarkable 
monument  of  state  interference,  the  University  of  Berlin. 


HEGEL  ON   THE   WILL  155 

Hegel  developed  with  great  fulness  his  evolutionary 
doctrine,  was  but  an  appendix,  however,  to  a  vast 
body  of  abstract  speculation  that  was  often  repulsive 
in  form  and  obscure  in  substance.^ 

Hegel's  political  theory  proper  was  systematically 
set  forth  in  his  Outlines  of  the  Philosophy  of  Right. ^ 
His  announced  purpose  in  this  work  was,  like  that 
of  Kant  and  Fichte,  to  exhibit  the  state  as  thinkable 
—  to  develop  the  purely  intellectual  modes  and 
processes  through  which  the  idea  of  the  state  must 
take  shape.  His  problem  was  avowedly  that  of  Plato. 
For  his  starting  point  he  took  the  will,  as  his  German 
predecessors,  following  Rousseau,  had  done.  But  the 
will,  as  Hegel  conceived  it,  was  not  an  attribute  or 
faculty  of  an  individual  person.  That  will  in  this 
sense  had  been  the  basis  of  earlier  systems,  was  in  his 
opinion  their  fatal  weakness.  In  this  Rousseau, 
Kant  and  Fichte  all  had  gone  astray.  For  valid 
philosophy,  Hegel  held,  will  must  be  conceived  as  one 
aspect  of  pure  abstract  intelligence  —  or  in  the  term 
that  almost  defies  rendering  into  English  —  of  Geist. 
Thus   conceived,   will   is   eternal,   miiversal,   self-con- 

1  Doubtless  these  qualities  are  inevitable  in  a  literature  that 
deals  with  the  uttermost  concepts  of  pure  thought ;  the  Hegelian 
exposition  at  any  rate  betrays  no  attempt  to  make  concessions  to 
the  average  intelligence,  and  bristles  throughout  with  a  serried 
array  of  heits  and  keits  and  tats  that  too  often  effectively  bar  access 
to  the  thought  that  lies  behind  them.  Thus,  for  example,  begins 
his  explanation  of  the  relation  between  family  and  civil  society : 
"  Die  Allgemeinheit  hat  hier  zum  Ausgangspunkt  die  Selbststandig- 
keit  der  Besonderheit,  und  die  Sittlichkeit  scheint  somit  auf  diesem 
Standpunkt  verloren,  denn  fiir  das  Bewusstsein  ist  eigentlich  die 
Identitat  der  Familie  das  Erste,  Gottliche  und  Pflichtgebietende." 

^  Grundlinien  der  Philosophie  des  Rechts,  oder  Naturrecht  und 
Staatswissen&chaft  im  Grundrisse.     In  Werke,  Band  VIII. 


156  POLITICAL  THEORIES 

scious,  self-determining.  Freedom,  therefore,  is  of 
the  essence  of  will.  As  Hegel  lucidly  phrased  it : 
The  idea  of  the  will,  as  a  last  abstraction,  is  the  free 
will  that  wills  the  free  will.^ 

Having  posited  free  will  thus  as  the  absolute,  Hegel 
develops  his  philosophy  by  presenting  various  stages 
of  the  process  in  which  this  absolute  idea  is  realized. 
"Realization,"  however,  does  not  mean  to  Hegel 
primarily  presence  to  the  senses  or  to  experience. 
The  reiterated  postulate  of  his  system  is :  What  is 
rational  is  real;  what  is  real  is  rational.^  Hence  the 
idea  of  the  free  will  is  realized  when  it  is  manifested 
in  some  form  of  thought  that  is  produced  by  right 
reason.  Thus  the  "realization  of  freedom"  is  but 
the  completion  of  an  exercise  in  formal  logic.  Such 
at  all  events  is  the  theoretical  character  of  Hegel's 
Rechtsphilosophie.  Starting  from  the  conception  of 
will  as  active,  the  philosopher  deduces,  by  the  methods 
and  formulas  of  his  peculiar  logic,  a  series  of  concepts 
in  which  he  discovers  a  progressive  approximation  to 
that  of  perfect  freedom.  These  concepts  form  the 
chapter  and  section  heads  of  his  system.  Let  us  take 
them  in  his  order .^ 

First  comes  law  (Recht).  This  is  the  field  in  which 
the  ideas  of  personality,  property  and  contract  are 
developed.  All  these  are  shown  to  be  manifestations 
of  the  free  will.     A  living  creature  is  a  person  only 

'  Philosophie  des  Rechts,  Einleitung,  sec.  27. 

*  "Was  vemunftig  ist,  das  ist  wirklieh;  und  was  wirklioh  ist, 
das  ist  vemunftig."  —  Werke,  VIII,  Vorrede,  p.  17.  Cf.  see.  141, 
Zusatz :    "  Nur  das  Unendliehe,  die  Idee,  ist  WirkUeh." 

*  Philosophie  des  Rechts,  sec.  33. 


REALIZATION   OF   THE   FREE   WILL  157 

SO  far  as  it  freely  wills  to  be  so.  An  object  is  property 
because  it  is  determined  by  the  free  will  of  a  person. 
A  human  being  or  a  people  is  property  —  slave  —  only 
because  of  lacking  the  free  will  to  be  free.^  In  this 
doctrine  as  to  slavery,  as  wherever  else  Hegel's  practical 
views  come  into  sight  through  the  haze  of  his  technical 
vocabulary  and  method,  law  and  rights  are  judged 
not  by  a  fixed  standard,  but  with  reference  to  the 
various  stages  of  culture  and  self-consciousness  that 
history  reveals. 

The  second  phase  in  the  realization  of  the  free  will 
is  subjective  morality  (Moralitdt).  Here  belong  those 
aspects  of  self-determination  in  which  the  individual 
is  affected  by  a  consciousness  of  other  like  individuals. 
The  conceptions  of  puipose  (Vorsatz),  responsibility, 
motive,  conscience  are  formulated  and  come  to  the 
front;  but  the  full  relation  of  the  individual  to  the 
universal  will  is  not  displayed  here.  That  is  revealed 
in  still  another  and  final  field,  that  of  conventional 
or  customary  morality  (Sittlichkeit) ,  or  in  other  words, 
social  ethics.^  The  customs  or  habits  {die  Sitten) 
of  mankind  express  the  working  of  a  universal  cause. 
At  the  same  time  they  bear  the  impress  of  individual 
choice.  These  considerations  underlie  Hegel's  rather 
rapturous  proclamations  that  the  socially  ethical 
(das  Sittlich)  satisfies  the  idea  of  realized  free  will. 

^  Philosophie  des  Rechts,  sec.  57. 

'  Hegel's  distinction  between  Moralitat  and  Sittlichkeit  can  hardly 
be  indicated  by  any  concise  expressions  in  English.  Bosanquet, 
whose  skill  in  formulating  what  Hegel  may  have  or  ought  to  have 
meant  is  so  vastly  superior  to  Hegel's  own  ability  to  make  clear 
what  he  reaUy  did  mean,  translates  Sittlichkeit  by  "  Social  Ethics." 
Philosophical  Theory  of  the  State,  p.  264  et  seq. 


158  POLITICAL   THEORIES 

As  he  expresses  it  in  his  own  technical  terms,  "what 
law  (Recht)  and  abstract  morality  (Moralitdt)  are 
not,  custom  (Sitte)  is,  namely,  spirit  (Geist) " ;  and 
spirit  is  "unity  of  the  individual  and  the  universal."  ^ 
Hence,  since  the  reduction  of  all  concepts  to  terms  of 
spirit  is  the  end  of  philosophy,  according  to  Hegel, 
his  goal  is  reached  in  social  ethics. 

It  is  in  the  detailed  exposition  of  this  subject  that 
the  theory  of  the  state  is  to  be  found.  The  institutions 
in  which  the  socially-ethical  is  revealed  are,  according 
to  Hegel,  three,  the  family,  civil  society,  and  the  state. 
His  doctrine  as  to  the  family,  when  stripped  of  its 
Hegelian  husks,  is  the  conventional  doctrine  of  his 
day.  Civil  society,^  however,  appears  in  a  new  light. 
It  is  made  to  include  those  relations  of  individual  to 
individual  that  turn  upon  the  satisfaction  of  economic 
needs,  the  protection  of  property  through  the  ad- 
ministration of  justice  (Rechtspflege)  and  the  care  of 
the  general  welfare  through  agencies  of  police  and 
corporation  {Polizei  und  Korporation) .  Admitting  that 
this  classification  attributes  to  civil  society  much  that 
has  commonly  been  attributed  to  the  state,  Hegel 
stoutly  defends  his  own  idea.  What  appears  to  be 
the  real  basis  of  his  procedure  is  the  zeal  for  artistic 
symmetry  in  the  structure  of  his  system.  The  adjust- 
ment of  these  introductory  concepts  is  cleverly  made 

*  Phil,  des  Rechts,  sees.  151,  156. 

2  Hegel's  term  is  burgerliche  Gesellschaft,  and  this  Bosanquet 
renders  "  bourgeois  society."  To  me  this  rendering  seems  mis- 
leading, because  it  suggests  a  connection  that  does  not  exist  between 
Hegel's  doctrine  and  certain  phases  of  nineteenth-century  revo- 
lutionary politics. 


STATE   THE   ESSENCE   OF   SPIRIT  159 

to  furnish  a  neat  and  attractive  setting  for  the  cap- 
stone —  the  idea  of  the  state  {der  Staat)} 

This  final  goal  of  his  system  evokes  the  utmost 
exuberance  of  Hegel's  peculiar  diction.  The  state, 
he  explains,  is  the  reality  of  the  socio-ethical  idea  — 
the  socio-ethical  spirit  as  the  revealed,  self-perceived, 
substantial  will  that  thinks  and  knows  itself  and  fulfils 
what  it  knows  so  far  as  it  knows  it.  The  state,  further, 
is  "perfected  rationality,"  "absolute,  fixed  end-in- 
itself "  ;  for  it  is  the  unity  of  the  universal  will  and  the 
individual  will — ^or  what  is  the  same  thing — of  objective 
and  subjective  freedom ;  and  the  unity  of  universality 
and  particularity  is  perfected  rationality  {das  an  und 
filr  sich  Vernunftige) .  As  such  the  state  is  of  the  eternal 
and  necessary  essence  of  spirit  (Sein  des  Geistes)} 

This  exposition  hardly  requires  the  warning  given 
by  Hegel,  that  he  is  dealing  with  the  state  not  as  a 
historical  phenomenon,  but  as  an  intellectual  concept 
{gedachter  Begriff).  His  phrases  should  have  in  fact 
no  meaning  to  one  not  an  adept  in  the  Hegelian  logic. 
But  the  philosopher  was  an  artist  in  abstractions, 
and  contrived  to  involve  his  dialectic  in  an  atmosphere 
of  mystical  exaltation  that  suggested  the  proximity 
of  undiscovered   truth.     Many   an   ardent   soul  was 

^  Thus,  after  a  rather  perfunctory  and  arid  treatment  of  the 
corporation,  he  continues :  "  Der  Zweck  der  Korporation  als  be- 
schrankter  und  endlicher  hat  seine  Wahrheit  ...  in  dem  an  und 
fiir  sich  allgemeinen  Zwecke  und  dessen  absoluter  Wirkliclikeit : 
die  Sphare  der  biirgerlichen  Gesellschaft  geht  daher  in  den  Staat 
liber."  —  Phil,  des  Rechts,  sec.  256.  Thus  the  corporation  fulfils 
the  useful  function  of  furnishing  the  philosopher  with  a  smooth 
transition. 

*  For  these  and  many  more  bits  of  Hegelian  eloquence,  see 
Philosophie  des  Rechts,  257,  258. 


160  POLITICAL  THEORIES 

satisfied  to  repeat  the  rhapsodical  Hegelian  dicta 
about  the  state  in  the  conviction  that  they  solved 
anew  and  finally  the  ultimate  problems  of  politics. 
The  ineffable  majesty  predicated  by  the  master  of  the 
state  as  idea,  was  inevitably  transferred  by  the  followers 
to  the  state  as  a  concrete  fact.  In  the  heyday  of 
Hegel's  popularity  at  Berlin  (1818-1831)  there  was  no 
lack  of  philosophasters  to  whom  the  Prussian  monarchy 
was  "perfected  rationality,"  or  who  saw  the  "eternal 
and  necessary  essence  of  spirit"  in  the  stodgy  Hohen- 
zoUern  then  on  the  throne. 

The  idea  of  the  state  manifests  itself,  according  to 
Hegel,  in  three  ways,  namely,  as  constitution  or  internal 
public  law  (Verfassung  oder  inneres  Staatsrecht)  as 
external  public  law,  and  as  world  history.  In  each 
of  these  three  channels  he  traces  the  progressive  un- 
folding of  freedom  —  the  synthesis  of  universal  and 
individual  will.  Without  following  the  devious  path 
by  which  the  philosopher  reaches  his  conclusions,  we 
will  notice  some  of  the  more  concrete  ideas  on  which 
he  expresses  himself  coherently. 

The  fundamental  fact  in  a  particular  state  is  the 
political  consciousness  (Gesinnung)  of  a  people  (Volk). 
This  consciousness  determines  the  constitution.  To 
think  of  a  constitution  as  a  created  thing  (em  Gemachtes) 
—  as  having  an  absolute  beginning,  is  all  wrong: 
there  may  be  changes  made  from  time  to  time,  but 
the  constitution  in  some  form  is  a  fixed  fact,  inseparable 
from  the  idea  of  a  state.^    Only  a  crowd  of  individuals 

*  Hegel's  expression  is  rather  strong:  "Die  Verfassung  ist  das 
Bchleohthin  an  und  fur  sieh  Seyende,  das  darum  als  das  Gottliche 


HEGEL   ON   CONSTITUTION  161 

can  be  thought  of  if  a  constitution  is  not  presumed; 
and  an  atomistic  crowd  is  no  concept  of  poHtical  science. 
Who  should  "make"  the  constitution,  is  therefore 
a  senseless  question.  Not  less  futile  is  debate  as  to 
what  form  of  constitution  and  government  is  best. 
A  people  inevitably  has  the  constitution  that  expresses 
its  spirit  and  culture  at  the  given  time.  No  other 
could  be  better  for  that  people  at  that  time.  Another 
system  in  another  community,  or  in  the  same  com- 
munity at  another  time,  may  more  fully  realize  liberty ; 
but  this  is  true  not  because  the  system  is  better  'per  se, 
but  because  a  higher  stage  of  culture  has  been  reached 
by  the  people. 

In  what,  now,  according  to  Hegel,  is  the  constitution 
manifest?  In  the  differentiation  and  action  of  the 
various  powers.  "The  state,"  he  says,  "is  organism, 
that  is,  development  of  the  idea  to  its  distinctions."  ^ 
The  organism  is  the  constitution,  consisting  of  distinct 
powers  so  correlated  as  to  sustain  and  strengthen 
the  unity  of  the  whole.  Hegel's  logic,  like  Montes- 
quieu's, discovers  three  of  these  powers,  but  the  Ger- 
man's three  are  not  the  Frenchman's.  The  three 
powers  indispensable  to  the  idea  of  state  are,  in  Hegel's 
analysis,  the  legislative,  the  administrative  (Regie- 
rung  sgewalt) ,  under  which  falls  the  judicial,  and  the 
monarchic  (furstliche  Gewalt).  Of  these,  the  first  two 
do  not  differ  substantially  from  the  legislative  and 
executive    of    earlier    philosophers.     The    monarchic 

und  beharrende,  und  als  iiber  der  Sphare  dessen,  was  gemacht 
wird,  zu  betrachten  ist."  —  Phil,  des  Rechts,  sec.  273. 

1  "  Der  Staat  ist  Organismus,  das  heisst,  Entwiekelung  der  Idee 
zu  ihreD  Unterschieden."  —  Ibid.,  sec.  269,  Zusatz. 

M 


162  POLITICAL  THEORIES 

power,  however,  is  endowed  by  Hegel  with  the  highest 
importance.  It  is  the  unifying  force  through  which 
the  other  two  powers  are  restrained  from  disrupting 
the  state.  It  is  the  element  through  which  the  idea 
of  a  constitution  is  fully  realized.  The  differentiation 
of  legislative  and  executive  expresses  the  principle  of 
diversity  that  is  essential  to  the  idea  constitution ; 
the  monarchic  power  contributes  the  principle  of  unity 
that  makes  the  idea  complete.  Constitutional 
monarchy,  thus  conceived,  fulfils  for  Hegel  all  the 
conditions  of  perfect  rationality,  and  the  development 
of  the  state  into  this  form,  he  declares,  is  the  typical 
achievement  of  the  modern  world.^  In  this  form  are 
comprehended  and  blended  the  three  forms,  monarchy, 
aristocracy  and  democracy,  that  satisfied  the  analysis 
of  earlier  and  more  primitive  ages ;  for  the  prince 
represents  the  one,  the  administration  the  few,  and  the 
legislature  the  many. 

The  monarchic  power  (furstliche  Gewalt)  is  demon- 
strated at  length  by  Hegel  to  furnish  the  only  really 
philosophical  principle  of  sovereignty.  Granting  that 
sovereignty  in  conception  may  properly  be  said  to 
be  an  attribute  of  the  state  as  a  whole,  he  contends 
that  sovereignty  in  reality  and  in  action  consists  in 
the  final  decisive  indication  of  an  individual  will.  If 
the  state  be  sovereign,  yet  an  expression  of  the  sovereign 
will  must  necessarily  involve  in  last  analysis  a  deter- 
mination by  some  person.    If  sovereignty  be  sacredly 

1  "  Die  Ausbildung  des  Staats  zur  eonstitutionellen  MonaroHe 
ist  das  Werk  der  neuern  Welt,  in  welcher  die  substantielle  Idee  die 
unendliohe  Form  gewonnen  hat."  —  Phil,  des  Rechts,  see.  273. 


SOVEREIGNTY   IS  MONARCHIC  163 

in  the  people  {das  Volk),  nevertheless  the  will  of  the 
people  is  in  every  concrete  instance  the  decision  of 
some  leader  or  some  nominal  servant.  The  monarchic 
principle  is  thus  present  and  active  in  every  state,  and 
the  fully  developed  political  people  will  recognize  this 
principle  and  give  full  expression  to  it  in  their  con- 
stitutional system  —  will  provide  for  its  regulated 
and  open,  rather  than  irregular  and  secret,  action.^ 
Sovereignty,  thus,  is  to  be  ascribed  scientifically  to 
the  monarch. 

This  demonstration  that  the  prince  is  an  essential 
feature  in  the  philosophical  conception  of  the  state 
is  followed  by  an  equally  elaborate  demonstration 
that  the  legislative  power  {gesetzgehende  Gewalt)  must 
be  vested  in  an  organ  wherein  prince,  administration 
(Regierung)  and  people  (Volk)  all  shall  have  part. 
Hegel's  idea  of  a  legislature  is  that  of  the  diet  (Landtag) 
long  familiar  in  Germany,  with  modifications  drawn 
from  the  British  Parliament.  He  supports  this  idea 
with  all  the  apparatus  of  his  peculiar  logic.  Par- 
ticipation of  prince  and  administration  in  lawmaking 
is  essential  to  the  unity  of  the  state  and  its  will  — 
which  unity  the  vaunted  separation  of  powers  must 
certainly  destroy.  The  popular  element  in  the  legis- 
lature must  appear  in  an  assembly  that  shall  represent 
the  people  as  organic,  not  as  atomistic.  Classes 
(Stdnde),  expressing  the  economic  and  social  interests 
of  the  community,  not  the  people  as  a  group  of  in- 
dividuals, furnish  the  basis  of  representation.  Hegel 
has  no  sympathy  with  the  current  notion  that  the 

1  Phil,  des  Rechts,  sec.  279. 


164  POLITICAL  THEORIES 

source  and  end  of  political  science  is  the  will  of  the 
people ;  for  in  many  or  most  cases  those  who  sustain 
this  dogma  really  mean  by  "people"  that  part  of  the 
people  which  does  not  and  cannot  know  its  own  will.* 
Self-conscious,  intellectual  volition  is  all  that  can 
enter  into  the  constitution  of  a  rational  state. 

In  external  public  law  Hegel  finds  the  state  mani- 
fested in  the  relation  of  independent  self-determined 
existence  among  distinct  communities.  International 
relations  must  be  expressed  in  a  system  that  recognizes 
the  complete  individuality  of  every  politically  self- 
conscious  people.  No  "law"  governs  these  relations, 
save  the  will  of  the  particular  states.  The  standards 
of  conduct  for  the  states  are  not  the  standards  of 
private  persons.^  War,  despite  the  amiable  ideals  of 
perpetual  peace  such  as  Kant  and  others  have  ex- 
pounded, must  remain,  Hegel  believes,  an  inevitable 
and  not  wholly  maleficent  incident  in  the  establish- 
ment and  preservation  of  national  individuality.^ 

The  final  channel  through  which  the  state  is  revealed 
as  perfected  free  will  is,  according  to  Hegel,  world 
history  {Weltgeschichte).  To  him  the  process  of  events 
is  an  unfolding  of  universal  spirit  (Geist).  The  culture 
of  every  people  —  its  art,  religion,  political  institutions 

»  " .  .  .  ist  vielmehr  der  Fall  dass  das  Volk,  insofern  mit  diesem 
Worte  ein  besonderer  Theil  der  Mitglieder  eines  Staats  bezeichnet 
ist,  den  Theil  ausdrtickt  der  nicht  weiss  was  er  will."  —  Phil,  des 
Rechts,  sec.  301. 

2  Ibid.,  sees.  330,  337. 

'  Adepts  in  the  Hegelian  terminology  probably  see  some  such 
thought  as  this  in  the  cryptic  phrase :  "  Der  Krieg  .  .  .  ist  .  .  .  das 
Moment  worin  die  Idealitat  des  Besonderen  ihr  Recht  erhalt  und 
Wirklichkeit  wird."  —  Op.  ciL,  sec.  324. 


WORLD-SPIRIT   REVEALED  165 

—  expresses  a  particular  stage  in  the  activity  and 
revelation  of  the  absolute  idea.  Each  successive  age 
in  world  history  since  civilization  began  offers  to  view 
some  people  in  whose  spirit  (Volksgeist)  is  reflected 
the  world-spirit  {Weltgeist)  so  far  as  that  has  been 
revealed.  The  process  of  revelation  and  realization 
of  the  idea,  according  to  the  principles  of  the  Hegelian 
dialectic,  is  a  fourfold  process.  It  is  not  surprising, 
therefore,  that  Hegel's  survey  of  general  history  de- 
tects four  great  world-historic  political  systems  (Reiche) 
in  whose  successive  careers  the  idea  of  freedom  has 
progressed  to  perfect  realization.  These  four  systems 
are  the  Oriental,  the  Greek,  the  Roman  and  the  Ger- 
man. With  benumbing  legerdemain  the  philosopher 
makes  the  commonplace  facts  of  familiar  history  fit 
themselves  nicely  at  the  word  into  the  categories  and 
relations  of  his  logic,  and  shows  us  mankind  through  all 
the  ages  marching  steadily  but  unconsciously  along 
Hegelian  lines  toward  the  Germanic  perfection  of  the 
nineteenth  century.  In  the  modern  world  freedom 
is  revealed  to  be  the  universal  principle  of  state  life. 
"The  Orient  knew  and  to  the  present  day  Imows 
only  that  One  [i.e.  the  despot]  is  free ;  the  Greek  and 
Roman  World,  that  Some  are  free;  the  German 
World  knows  that  All  are  free."  ^ 

Such  is  Hegel's  generalization  of  the  world-historical 
process.  It  displays  the  usual  tendency  of  a  philosophy 
of  history  —  to  represent  the  thinker's  own  time 
and  place  as  the  climax  and  summation  of  progress. 
But  with  whatever  qualifications  we  judge  the  specu- 

1  Philosophy  of  History,  p.  104. 


166  POLITICAL  THEORIES 

lation  and  conclusions  of  Hegel,  it  is  impossible  to 
deny  that  the  scope  and  coherency  of  his  system  of 
political  science  and  the  boldness  and  vast  sweep  of 
his  historical  inductions  ^  reveal  a  mind  of  titanic 
power. 

5.   Influence  of  the  German  Idealists 

Of  the  historical  and  evolutionary^  spirit  that  pervaded 
Hegel's  politics  there  was  little  or  no  sign  in  the  thought 
of  Kant  and  Fichte.  They  represented  the  dogmatism 
of  the  French  Revolution,  while  Hegel  reflected  a  phase 
of  the  reaction  that  followed  the  downfall  of  Napoleon. 
There  was  thus  great  diversity  among  those  whom  I 
have  classed  together  in  this  chapter.  But  there  was 
also  an  essential  likeness  that  justifies  the  classifica- 
tion —  the  conviction  comanon  to  all  that  the  vital 
truths  of  political  science  were  to  be  reached  rather 
through  the  processes  of  pure  thought  than  through 
investigation  of  experience.  Absolute  verity,  compre- 
hensible to  supreme  intelligence,  but  transcending  the 
sphere  of  the  practical,  was  the  goal  common  to  these 
thinkers. 

Like  all  other  idealists  the  German  philosophers 
achieved  in  fact  little  more  than  to  clothe  certain 
institutions  and  aspirations  of  contemporary  politics 
with  the  sanctifying  garb  of  a  mystic  form  and  nomen- 
clature. To  the  substance  of  political  doctrine  their 
contributions  were  very  slight.  The  strength  and 
earnestness  of  their  expositions  and  the  confidence  and 

^  His  Philosophy  of  History  contains  a  full  and  extraordinarily 
eloquent  and  inspiring  expansion  of  the  idea  of  world-history  that 
is  outlined  in  The  Philosophy  of  Law,  sees.  341-360. 


WILL  AND   CONTRACT  167 

zeal  inspired  in  their  disciples  produced,  however,  very- 
clear  results  in  the  form  and  method  of  political  philoso- 
phy, especially  in  Germany.  Through  the  refined 
psychological  analysis  that  characterized  the  work  of 
Kant,  Fichte  and  Hegel  the  scope  and  classification  of 
political  ideas  assumed  great  scientific  precision.  As 
to  the  further  influence  of  these  thinkers,  it  may  be 
summed  up  as  follows. 

1.  The  idea  of  will,  as  the  ultimate  element  in  politics 
and  law,  was  developed  to  its  utmost  limits.  While 
Rousseau  had  exploited  this  idea  with  the  clever  manipu- 
lation of  the  amateur,  Kant  and  Fichte,  with  profes- 
sional exactness,  set  it  in  place  as  the  comer-stone  of 
a  massive  and  symmetrical  philosophy.  Hegel  also 
held  to  the  will  as  the  initial  idea ;  but  in  his  philoso- 
phical structure  it  was  the  capstone  rather  than  the 
corner-stone,  he  building  from  the  apex  down,  as  was 
done,  according  to  an  ingenious  hypothesis,  by  the  con- 
structors of  the  Egyptian  pyramids. 

2.  Contract,  as  the  formula  through  which  the  in- 
dividual will  created  social  and  political  authority, 
received  at  the  hands  of  Kant  and  Fichte  the  highest 
degree  of  philosophical  finish.  No  more  was  possible 
than  Fichte  actually  did  to  give  full  scope  and  logical 
precision  to  the  theory  of  the  social  contract.  Even 
in  his  own  life-time,  however,  as  the  spirit  of  the  Revo- 
lution waned,  the  validity  of  this  formula  as  a  basis  of 
political  life  began  to  appear  less  clear.  Hegel  dropped 
it  entirely  in  his  explanation  of  the  state;  and  in  all 
later  political  theory,  the  social  contract,  while  some- 
times deferred  to  with  formal  respect,  has  never  re- 


168  POLITICAL  THEORIES 

ceived  the  seriou.s  recognition  of  any  philosopher  rank- 
ing intellectually  with  Fichte. 

3.  The  decline  of  the  contract  theory  was  promoted 
by  another  influence  emanating  from  the  German  ideal- 
ists. AVhatever  the  degree  of  respect  manifested  by 
them  for  the  dignity  and  rights  of  man  as  an  individual, 
all  of  them  save  Humboldt  ascribed  unmeasured  majesty 
and  excellence  to  the  state.  With  Kant  and  Fichte 
this  ascription  originated  in  their  sense  of  the  import- 
ance of  political  organization  to  the  individual,  but  took 
eventually  a  shape  that  lost  connection  with  its  origin 
and  suggested  a  cult  of  state  and  even  of  monarch  per 
se.  With  Hegel  the  glorification  of  the  state  became  a 
sort  of  Bacchic  frenzy  over  intellectual  parturition. 
Having  brought  forth  the  idea  of  the  state,  he  set  no 
limit  to  the  adulation  of  his  offspring :  It  is  the  absolute 
spirit,  consciously  realizing  itself  in  the  world ;  its 
existence  has  no  other  explanation  than  that  God  so 
wills ;  it  is  God.^  Where  such  doctrine  held  sway 
there  was  inevitably  a  tendency  for  the  individual  to 
wither  and  for  attention  to  center  about  the  institutions 
in  which  this  divine  existence  was  manifest.  The 
attributes  of  political  authority  rather  than  the  rights 
of  man  became  the  core  of  discussion. 

Finally,  the  doctrine  of  nationality  as  a  fundamental 
principle  of  political  organization  received  considerable 

1  "  Der  Staat  ist  der  Geist,  der  in  der  Welt  steht  und  sich  in 
derselben  mit  Bewusstsein  realisirt  .  .  .  es  ist  der  Gang  Gottes 
in  der  Welt,  dass  der  Staat  ist;  .  .  .  Bei  der  Idee  des  Staats 
muss  man  nicht  besondere  Staaten  vor  Augen  haben  .  .  .  man 
muss  vielmehr  die  Idee,  diesen  wirklichen  Gott,  f  iir  sich  betrachten." 
—  Phil,  des  Rechts,  sec.  258,  Zusatz. 


NATION  AND  PEOPLE  169 

stimulus  from  both  Fichte  and  Hegel.  The  partition 
of  Poland,  the  sweeping  obliteration  of  ancient  juris- 
dictions by  the  Napoleonic  conquests  and  the  no  less 
arbitrary  readjustments  by  the  Congress  of  Vienna, 
all  aroused  fierce  controversy  as  to  the  theoretical  basis 
of  the  claim  to  independent  political  existence.  Fichte 
set  up,  as  we  have  seen,  the  ideal  of  a  geographically 
isolated  and  economically  self-sufficing  community  as 
objectively  a  nation.  Hegel  was  less  precise  and 
stressed  political  self-consciousness  as  the  criterion  of  a 
people  (Volk).  At  the  same  time  he  attributed  great 
significance  to  geographic  and  other  physical  condi- 
tions, quite  in  the  spirit  of  Bodin  and  Montesquieu, 
and  included  the  whole  world  in  a  splendid,  if  not 
wholly  convincing,  generalization  as  to  the  past, 
present  and  future  abodes  of  the  truly  world-historic 
nations.-^ 

It  was  of  course  an  essential  element  in  the  doctrines 
of  the  philosophers  that  the  criteria  of  nationality 
should  be  such  as  to  assure  to  the  Germans  of  central 
Europe  the  qualities  of  a  political  people.  The  con- 
ceptions worked  out  in  accordance  with  this  require- 
ment played  a  great  role  in  the  demand  for  German 
national  unity  that  figured  so  largely  in  the  stirring 
history  of  the  mid-nineteenth  century.  — 

^  Philosophy  of  History,  Introduction.  America,  he  says,  is  "  the 
land  of  the  future,  where,  in  the  ages  that  lie  before  us,  the  burden 
of  the  World's  History  shall  reveal  itself.  ..."  —  Page  86. 


170  POLITICAL  THEORIES 

SELECT  REFERENCES 

Bosanquet,  Philosophical  Theory  of  the  State,  chaps,  ix,  x. 
Bluntschh,  Geschichte,  Kap.  xii  (Kant) ;  Kap.  xiv  (Fichte  and  Hum- 
boldt) ;  Kap.  xviii  (Hegel) .  Caird,  Essays  on  Literature  and 
Philosophy,  II,  pp.  392-442.  Fichte,  Werke,  Bande  III,  IV.  Hegel, 
Philosophy  of  History,  translated  by  Sibree,  Introduction; 
Philosophy  of  Right,  translated  by  Dyde.  Humboldt,  Sphere  and 
Duties  of  Government.  Janet,  Histoire,  II,  pp.  574-627  (Kant). 
Kant,  Philosophy  of  Law,  translated  by  Hastie ;  Project  for 
a  Perpetual  Peace.  Leon,  La  Philosophie  de  Fichie,  pp.  211-248, 
465-508.  Levkovits,  Die  Staatslehre  auf  Kantischer  Grundlage. 
Wallace,  Hegel's  Philosophy  of  Mind,  Essay  V.  Zeller,  "Fichte 
(ds  Politiker,"  in  Sybel's  Historische  Zeitschrift,  IX,  23. 


CHAPTER  V 

THEORIES    OF   CONSERVATISM   AND    REACTION 

1.  General  Character  and  Influence 

Between  1789  and  1812  the  wave  of  revolutionary 
doctrine  generated  at  the  French  capital  swept  destruc- 
tively over  continental  Europe,  with  little  effective 
resistance  till  the  boundaries  of  the  Czar  and  the  Sul- 
tan were  reached.  Adversaries  of  the  subversive  creed 
were  mercilessly  thrust  aside  by  both  the  republican 
and  the  imperial  realizations  of  the  triumphant  ideas. 
In  the  early  years  of  the  revolution  the  protests  of 
conservatism  were  multitudinous  and  full-throated; 
but  before  the  amazing  transformations  wrought  by 
Jacobin  and  Napoleonic  France  they  dwindled  to  a  few 
faint  and  feeble  voices  from  the  obscure  nooks  and 
comers  where  the  enemies  and  victims  of  the  revolu- 
tion found  uncertain  safety.  In  Great  Britain  alone 
anti-revolutionary  doctrine  was  full  in  volume  and  un- 
restrained in  expression.  Edmund  Burke's  vehement 
eloquence  set  the  pace  that  the  lesser  thinkers  strove 
to  maintain.  Inevitably,  however,  in  the  tine  manner 
of  the  British,  their  philosophy  centered  mainly  on  the 
practical  problems  of  their  own  internal  and  interna- 
tional politics.  Their  concern  was  deeper  in  the  effect 
of  a  powerful  French  state  on  world  commerce  and  the 

171 


172  POLITICAL   THEORIES 

balance  of  political  influence,  than  in  the  theoretical 
question  as  to  the  true  basis  and  the  proper  organ  of 
the  power.  The  gigantic  effort  that  destroyed  Na- 
poleon was  directed,  not  against  the  representative  of 
the  French  people,  but  against  the  disturber  of  the  peace 
and  equilibrium  of  Europe. 

When,  however,  the  great  task  had  been  accomplished 
and  the  question  of  readjustment  was  before  the  con- 
querors, speculation  about  what  had  happened  became 
active,  and  the  principles  of  the  new  order  were  warmly 
debated.  Voices  that  had  been  silent  or  imnoticed 
during  the  past  twenty  years  rang  out  clamorously  in 
behalf  of  the  institutions  and  the  doctrines  that  had 
been  overwhelmed  by  the  revolution.  The  practical 
settlement  of  the  questions  at  issue  in  the  great  wars 
was  effected  in  the  two  treaties  of  Paris,  of  1814  and  1815 
respectively,  and  in  the  agreements  reached  at  the 
Congress  of  Vienna  (September,  1811,  to  June,  1815). 
Under  these  compacts  the  principles  of  popular  sov- 
ereignty, constitutional  government  and  nationality 
received  short  shrift ;  but  nevertheless  it  was  impossible 
to  avoid  altogether  the  admission  that  something  had 
happened.  A  restoration  of  territory  and  government 
to  the  precise  conditions  that  prevailed  twenty  years 
earlier  was,  humanly  speaking,  impossible;  in  deter- 
mining how  far  the  process  could  and  should  go  in  con- 
crete cases  the  debates  sometimes  turned,  even  in  the 
innermost  shrines  of  reaction,  on  considerations  of 
popular  desire  and  economic  or  other  national  interest. 
Most  significant  of  the  evidence  that  some  sense  of 
progress  was  present  at  Vienna  was  the  well-known 


THE  BOURBON  CHARTER         173 

provision  in  reference  to  the  newly  established  German 
Confederation,  that  there  should  be  in  every  state  be- 
longing to  it  a  constitution  based  upon  the  Estates 
{landstaendische  Verfassung).  This  species  of  con- 
stitution was  not  one  that  appealed  to  the  liberals; 
indeed  it  was  precisely  what  had  been  overthrown  in 
France  in  1789 ;  but  that  any  qualification  at  all  of  the 
monarchic  principle  should  be  approved  at  Vienna, 
was  very  suggestive. 

The  concession  involved  in  this  German  provision 
had  already  been  exceeded  in  fact  by  the  act  of  the 
Bourbon  Louis  XVIII,  whom  the  allied  powers  restored 
to  the  French  throne.  He  so  far  recognized  the  trend 
of  things  as  to  proclaim  a  constitution  (Charte  con- 
stitutionelle)  ,^  guaranteeing  civil  and  religious  liberty, 
equality  before  the  law  and  parliamentary  government. 
Here  was  indeed  a  written  constitution  —  the  goal  of 
the  revolutionists'  doctrine.  But  it  was  a  constitution 
mth  a  difference.  "VMiile  m  practice  it  might  secure  the 
substance  of  free  government,  in  its  theoretical  basis  it 
repudiated  the  whole  dogma  of  the  revolution.  The 
Charte  was  the  supreme  law ;  its  source,  however,  was 
the  will  of  the  king,  not  of  the  people  or  the  nation ; 
and  the  authority  of  the  king  was  derived,  not  from  the 
people  or  the  nation,  but  from  God.  "All  authority 
in  France/'  the  document  said,  "resides  in  the  person  of 
the  king" ;  out  of  consideration  for  the  wish  and  wel- 
fare of  his  subjects,  he  has  volmitarily  granted  the 
rights  and  governmental  order  established  by  it.  As  it 
embodied  nothing  of  popular  sovereignty,  so  it  embod- 

^  Helie,  Constitutions  de  la  France,  3me  fasc,  p.  884  et  seq. 


174  POLITICAL   THEORIES 

ied  nothing  of  natural  rights.  The  Hberties  accorded 
by  it  had  no  special  sanctity  as  inalienable  or  im- 
prescriptible ;  they  were  granted  by  the  king  and  had 
no  guarantee  other  than  his  formal  oath  to  maintain 
the  Charte. 

This  species  of  constitution,  either  the  absolute 
concession  by  a  monarch,  or  a  compact  between  a 
monarch  and  the  ancient  estates  of  his  realm,  was  put 
in  operation  in  many  of  the  lesser  states  of  Europe  in 
the  years  following  the  overthrow  of  Napoleon.^  Both 
in  content  and  in  manner  of  establishment  it  expressed 
the  moderate  and  conservative  idea  of  political  progress 
that  was  especially  represented  in  the  history  of  Eng- 
land. To  those  in  whom  the  ends  and  methods  of  the 
French  in  1789-93  were  still  ideals  of  eternal  right, 
the  granted  charters  lacked  all  validity  and  must  as 
speedily  as  possil3le  be  made  to  give  way  to  the  will  of 
the  people.  At  the  other  extreme  the  reactionary 
element  of  the  restored  aristocracy  and  clergy  saw  only 
an  amiable  weakness  in  the  monarch's  willingness  to 
grant  privileges  to  his  subjects,  and  strove  with  might 
and  main  to  thwart  every  policy  that  led  further  away 
from  the  sacred  system  of  the  ancien  regime.  The 
particular  concrete  embodiment  of  this  reactionary 
ideal  was  the  Holy  Alliance,  created  by  the  treaty  of 
September,  1815,  between  the  monarchs  of  Russia, 
Austria  and  Prussia.  This  unique  convention  an- 
nounced, among  others,  the  following  intentions  of  its 
signatories :  to  take  as  their  sole  guide  in  both  internal 

*  Borgeaud,  Adoption  and  Amendment  of  Constitutions,  p.  28,  et 
aeq. 


THE   HOLY  ALLIANCE  175 

and  external  relations  of  their  governments,  the  pre- 
cepts of  justice,  Christian  charity  and  peace ;  to  treat 
one  another  as  brothers,  and  to  act  toward  their  re- 
spective subjects  as  fathers  of  families ;  to  regard  them- 
selves as  delegated  by  Providence  to  govern  three 
branches  of  one  family,  whose  sole  sovereign  should  thus 
confessedly  be  God. 

There  was  not  much  comfort  for  the  revolutionists 
or  even  for  moderate  conservatives  derivable  from  such 
a  platform,  though  the  treaty  taken  as  a  whole  was 
redolent  of  virtue,  benevolence  and  piety.  To  the  ex- 
treme reactionaries,  however,  the  religious  and  mys- 
tical tenor  of  the  Holy  Alliance  made  a  strong  appeal. 
The  breaking  up  of  society  by  the  rationalistic  revolu- 
tion had  confirmed  in  many  minds  of  the  harried  and 
impoverished  nobility  and  clergy  the  conviction  that 
faith  and  the  ancient  church  afforded  the  only  security 
for  mankind.  Accordingly  the  political  philosophy 
that  came  forth  in  large  bulk  after  1815  tended  very 
strongly  to  theological  and  mystical  lines.  This  quality 
was  distinctive  of  Bonald,  Maistre  and  lesser  lights  of 
their  school.  Their  whole  tendency  was  obscurantist, 
and  their  practical  influence  was  to  win  some  measure 
of  intellectual  support  for  the  measures  of  Mettemich, 
who  himself,  while  skilfully  plying  every  means  to  re- 
press liberalism,  was  at  heart  no  devotee,  but  a  con- 
temptuous cynic. 

Of  quite  different  a  general  tone,  though  at  one  on 
many  particular  points,  was  that  species  of  anti-revo- 
lutionary doctrine  whose  unapproachable  chief  was 
Edmund   Burke.    The   ramifications   of   Burke's   in- 


176  POLITICAL  THEORIES 

fluence  were  very  extensive.  His  diatribes  against 
the  revolution  were  freely  reproduced  by  translation  and 
imitation  all  over  the  continent.  His  eloquence  and 
fervor  won  attention  where  his  reasoning  fell  short  of 
the  demands.  But  he  was,  as  a  whole,  not  in  the  class 
of  reactionaries  and  obscurantists.  He  would  never 
have  advocated  absolute  monarchy ;  his  ideal  was  the 
sort  of  constitutional  rule  that  the  conservatives  after 
1815  actually  established. 

2.  Edmund  Burke 

At  the  age  of  fifty-nine,  after  a  long  and  arduous 
public  career  as  a  Whig  in  British  politics,  Burke  was 
confronted  in  1789  with  the  necessity  of  judging  the 
revolutionary  proceedings  in  France.  Many  of  the 
Frenchmen,  with  many  approving  Englishmen,  be- 
lieved the  principles  and  purposes  of  the  National  As- 
sembly at  Paris  to  be  identical  with  those  of  the  Parlia- 
ment at  London  that  just  one  hundred  years  earlier 
effected  the  English  revolution.  The  ^Vhigs,  there- 
fore, who  boasted  themselves  the  particular  bearers  of 
the  doctrines  and  traditions  of  the  "glorious  revolution" 
of  1688,  were  naturally  expected  and  disposed  to  sympa- 
thize with  the  new  order  in  France.  Burke,  however, 
took  alarm  at  both  the  principles  and  the  procedure  of 
the  Frenchmen.  Their  dogmas,  he  saw,  recalled  rather 
the  Levelers  of  1649  than  the  Whigs  of  1688 ;  and  their 
sweeping  demolition  of  ancient  institutions,  political, 
religious  and  economic,  filled  his  conservative  and 
aristocratic  soul  with  horrid  forebodings  of  democracy. 
England  became  full  of  unrest  and  agitation  in  sym- 


BURKE   ATTACKS   REVOLUTION  177 

pathy  with  French  principles.  Societies  for  the  propa- 
gation of  these  ideas  manifested  much  activity.  The 
scorn  and  loathing  with  which  Burke  regarded  such 
presumptuous  intermeddling  of  the  common  people 
with  the  high  things  of  politics  spurred  him  to  energetic 
action  against  them.  In  Parliament  he  pronounced 
an  initial  invective  against  the  French  proceedings/  and 
then  he  put  forth  the  famous  essays  in  which  he  dealt 
at  large  with  the  whole  history  and  philosophy  of  the 
revolution  as  he  saw  it.  The  leading  work  was  the 
Reflections  on  the  Revolution  in  France,^  published  in 

1790,  and  the  second  in  importance  —  perhaps  the  first 
from  the  standpoint  of  political  philosophy  —  was  An 
Appeal  from  the  New  to  the  Old  Whigs,^  published  in 

1791.  Neither  of  these  works  presents  a  body  of  sys- 
tematic political  theory.  Both  consist  in  large  part  of 
violent  assaults  upon  what  Burke  assumed  —  often 
quite  without  accuracy  —  to  be  the  policy  and  achieve- 
ments of  the  French  revolutionary  party.  The  splendid 
glow  of  his  eloquence  tends  to  dim  the  sequence  of  his 
reasoning,  yet  it  is  not  so  serious  a  task  to  reconstruct, 
from  the  fragments  scattered  through  his  essays,  the 
philosophy  that  underlies  his  emotion. 

Burke's  hostility  to  the  dominant  principles  of  the 
revolution  is  directed  against  both  their  general  char- 
acter and  their  specific  content.  As  to  their  general 
character,  he  detests  and  spurns  the  method  of  precise 
mathematical  formulation  of  human  rights  and  social 

1  In  the  debate  on  the  army  estimates,  Feb.  9,  1790.     Works 
(Boston,  1884),  III,  213. 

2  Works,  III,  231.  » Ibid.,  IV,  57. 


178  POLITICAL   THEORIES 

arrangements.  The  rigor  of  exact  logic  has,  he  holds, 
no  controlling  place  in  the  ultimate  explanation  of 
political  life.  That  proudest  achievement  of  French 
philosophy,  the  reduction  of  governmental  science  to  the 
brief  formulas  of  a  written  constitution,  is  to  Burke 
supreme  foolishness.  The  Declaration  of  the  Rights  of 
Man  is  "a  sort  of  institute  and  digest  of  anarchy,"  — 
"such  a  pedantic  abuse  of  elementary  principles  as 
would  have  disgraced  boys  at  school."^  Just  in  pro- 
portion as  the  dogmas  of  this  code  are  metaphysically 
or  logically  true  they  are  morally  and  politically  false. 
For  government,  Burke  argues,  is  a  contrivance  to 
provide  for  the  wants  of  men,  after  the  institution  of 
society  has  superseded  their  abstract  rights.  The 
provision  for  their  wants  is  a  matter  that  requires  a 
careful  consideration  of  means,  and  the  organization  of 
such  means  is  the  constitution  of  a  state ;  but  the  matter 
of  rights  derivable  from  abstract  reasoning  about  pre- 
social  conditions  no  longer  has  importance.^  Why 
discuss,  he  asks,  a  sick  man's  abstract  right  to  medicine  ? 
Call  in  a  physician,  not  a  professor  of  metaphysics. 

This  impatience  with  a  philosophy  that  is  too  precise 
and  definite  is  abundantly  illustrated  by  Burke's  han- 
dling of  the  contract  theory.  In  this  he  is  most  success- 
ful in  avoiding  the  precision  and  self-consistency  that 
offend  him.  Both  concepts  that  we  have  seen  desig- 
nated by  the  name  contract  theory  figure  in  Burke's 
works.  He  chscourses  on  the  agreement  that  con- 
stitutes civil  society  and  also  on  that  which  expresses 
the  relation  between  monarch  and  subjects.    But  in 

»  Works,  III,  221.  2  Ibid.,  Ill,  310  et  seq. 


AN  INCOHERENT  CONTRACT        179 

neither  case  will  Burke  give  such  definiteness  to  the 

contract  as  to  justify  the  conclusions  drawn  from  it  by 

the  revolutionists.     The  dangerous  clarity  with  which 

Hobbes  and  Rousseau  and  their  followers  set  forth  the 

terms,  the  parties  and  the  content  of  the  social  pact, 

has  no  charm  for  Burke.    He  takes  up  the  habit  of 

Bolingbroke  and  the  other  English  essayists,  and  around 

the  vague  outline  of  the  contract  as  they  present  it 

he  throws  the  multiplied  incoherence  of  his  dazzling 

rhetoric : 

Society  is  indeed  a  contract  .  .  .  but  the  state  ought  not 
to  be  considered  as  nothing  better  than  a  partnership  agree- 
ment in  a  trade  of  pepper  and  coffee  ...  to  be  taken  up  for 
a  little  temporary  interest  and  to  be  dissolved  by  the  fancy 
of  the  parties.  ...  It  is  a  partnership  in  all  science,  a  part- 
nership in  all  art,  a  partnership  in  every  virtue  and  in  all 
perfection.  As  the  ends  of  such  a  partnership  cannot  be 
obtained  in  many  generations,  it  becomes  a  partnership 
not  only  between  those  who  are  living,  but  between  those 
who  are  living,  those  who  are  dead  and  those  who  are  to  be 
bom.  Each  contract  of  each  particular  state  is  a  clause  in 
the  great  primaeval  contract  of  eternal  society,  linking  the 
lower  with  the  higher  natures,  connecting  the  visible  and 
invisible  world,  according  to  a  fixed  compact  sanctioned  by 
the  inviolable  oath  which  holds  all  physical  and  all  moral 
natures  each  in  their  appointed  place.  .  .  } 

Burke  could  feel  perfectly  confident,  after  penning 
this  famous  rhapsody,  that  no  logic-chopper  would 
ever  use  it  to  sustain  a  revolution. 

In  his  Appeal  from  the  New  to  the  Old  Whigs  Burke 
was  obliged  to  grapple  at  close  quarters  with  the  doc- 
trines of  the  revolutionary  party.  A  host  of  keen  critics  ^ 

*  Reflections,  in  Works,  III,  359. 

*  Thomas  Paine,  in  his  Rights  of  Man,  was  one  of  the  keenest. 


180  POLITICAL  THEORIES 

replied  to  the  Reflections  and  extorted  from  the  author 
something  more  definite  in  both  attack  and  defence. 
Burke  took  up  the  fundamental  dogmas  of  the  revolu- 
tionary school  and  opposed  to  them  the  bases  of  his 
own  belief.  That  sovereignty  resides  constantly  and 
inalienably  in  the  people ;  that  the  people  may  lawfully 
change  their  government  at  will;  that  a  majority 
counted  by  the  head  is  the  final  and  unquestionable 
organ  of  the  people's  will ;  that  the  assignment  of 
precisely  equal  weight  to  every  individual's  judgment  is 
a  requirement  of  political  justice ;  that  no  people  has 
a  constitution  until  some  formal  written  document 
shall  have  been  adopted  by  popular  vote :  —  all  these 
dogmas,  which  according  to  Burke  are  the  substance 
of  his  adversaries'  philosophy,  he  rejects  with  the  most 
positive  energy.  In  their  place  he  maintains  a  view 
that  is  substantially  as  follows : 

Political  society  and  government  may  have  their 
origin  in  the  consent  and  agreement  of  individual  men. 
To  that  extent  the  will  of  the  people  is  the  source  of 
authority  and  may  be  called  sovereign.  But  beyond 
that  beginning,  in  the  life  and  action  of  a  state  duly 
constituted,  it  is  utterly  wrong  to  regard  the  individual 
will  as  a  predominant  factor,  or  any  number  of  such 
wills  as  the  abode  of  paramount  authority.  The  man 
born  in  an  established  society  is  under  obligation  from 
his  birth  to  respect  the  institutions  of  that  society. 
To  assert  that  he  is  free  to  disregard  them  at  the  behest 
of  his  own  will,  is  to  assert  the  principle  of  anarchy. 
Duty  must  be  recognized  as  above  will.  Duties  rest 
upon  men  irrespective  of  their  formal  consent.     They 


DUTY   BEFORE   WILL  181 

arise  from  conditions  and  relations  in  which  voHtion 
and  choice  have  no  part.  Without  conceding  this, 
society  is  impossible.  The  relation  of  parent  and  child 
is  not  a  volmitary  one  — ■  certainly  not  on  the  part  of 
the  child,  possibly  not  on  that  of  the  parent ;  but  the 
moral  duties  that  arise  out  of  the  relation  are  essential 
to  social  development.  So  the  political  and  social 
circumstances  amid  which  a  man  is  born  are  not  his 
choice ;  yet  they  impose  duties  upon  him. 

[No]  man  or  number  of  men  have  a  right  (except  what 
necessity,  which  is  out  of  and  above  all  rule,  rather  imposes 
than  bestows)  to  free  themselves  from  that  primary  engage- 
ment into  which  every  man  born  into  a  community  as  much 
contracts  by  being  born  into  it  as  he  contracts  an  obligation 
to  certain  parents  by  his  having  been  derived  from  their 
bodies.    The  place  of  every  man  determines  his  duty.^ 

This  keen  and  powerful  attack  upon  the  dogmas  of 
popular  sovereignty  and  the  right  of  revolution  Burke 
supplements  by  a  not  less  vigorous  handling  of  the 
claim  that  a  numerical  majority  wields  the  authority 
that  the  people  possesses.  His  argument,  concisely  put, 
is,  that  in  establishing  a  state  unanimity  is  indispen- 
sable, on  the  showing  of  the  advocates  of  popular  sove- 
reignty themselves,  and  after  the  state  is  established 
the  people  as  a  mass  of  independent  units  no  longer 
exists,  having  been  replaced  by  the  organization  and 
relationships  created  by  the  social  union ;  neither 
before  nor  after  the  formation  of  government,  therefore, 
is  there  any  place  for  mere  majority  rule. 

To  the  suggestion  that  the  conduct  of  government  by 

1  Works,  IV,  167. 


182  POLITICAL   THEORIES 

majority  votes  of  the  people  may  be  prescribed  by  the 
very  terms  of  the  agreement  by  which  a  society  is 
instituted,  Burke's  reply  is  his  doctrine  that  the  state 
that  follows  nature  is  necessarily  aristocratic.  That 
a  number  of  men,  of  various  endowments,  should  be 
able  to  act  as  one  body,  presumes,  Burke  holds,  some 
kind  of  leadership  by  the  wiser  and  more  expert.  Only 
thus  can  there  be  hope  of  attaining  the  ends  of  the 
association.  This  appears  in  the  state  of  nature  that 
precedes  the  organization  of  government.  A  natural 
aristocracy  is  to  be  seen  in  every  "large  body  rightly 
constituted."  In  a  nation  it  is  seen  in  the  class  of 
those  who  by  birth,  wealth  or  intellect  have  a  particu- 
lar fitness  for  public  functions  ^  —  the  men  of  light  and 
leading.  To  submerge  these  in  the  great  mass  of  lesser 
men  and  give  them  only  the  weight  of  their  numbers, 
would  be  violence  to  the  natural  order  of  things  and  the 
enthronement  of  anarchy. 

As  to  the  theory  of  a  constitution,  Burke  has  nothing 
positive  to  offer  beyond  the  exposition  and  eulogy  of 
the  constitution  of  England.  In  this  he  sees  social  and 
political  forces  operating  with  the  regularity,  ease  and 
effectiveness  of  nature  herself.  The  organs  of  govern- 
ment —  King,  Parliament  and  courts  —  have  their 
authority  from  the  law  and  custom  of  the  land,  which 
express  the  compact  on  which  the  constitution  rests. 
The  rights  of  the  people  have  their  definition,  and  the 
interests  of  all  classes  their  protection,  in  this  law  and 
custom.    Life,  liberty  and  property  are  secure,  not 

'  Burke's  description  of  this  class  is  probably  the  most  compre- 
hensive and  effective  ever  penned.     Works,  IV,  174-5. 


THE   BRITISH   CONSTITUTION  183 

because  any  abstract  philosophy  requires  it,  but 
because  it  is  embodied  in  the  law.  Political  conven- 
ience, not  logical  formulas  of  right  and  justice,  is  the 
foundation  of  policy.  Liberty  and  authority  are  both 
duly  regulated.  "The  whole  scheme  of  our  mixed 
constitution  is  to  prevent  any  one  of  its  principles  from 
being  carried  as  far  as,  taken  by  itself  and  theoretically, 
it  would  go."  Check  and  balance  are  of  the  essence 
of  the  system.  Each  part,  while  serving  its  own  par- 
ticular end,  limits  and  controls  the  other  parts.  Hence, 
"in  the  British  constitution  there  is  a  perpetual  treaty 
and  compromise  going  on,  sometimes  openly,  sometimes 
with  less  observation."  ^  In  this,  as  contrasted  with 
the  insistence  that  any  principle  shall  be  applied  in  its 
abstract  perfection,  Burke  finds  the  special  merit  and 
philosophical  justification  of  a  constitution. 

It  is  clear  from  the  foregoing  that  Burke's  spirit  is 
the  spirit  of  the  statesman  rather  than  the  closet  phi- 
losopher. His  thought  centers  about  the  state  as  a 
going  concern  rather  than  as  a  concept  of  pure  thought. 
To  reason  from  the  ultimate  thinkable  in  politics  is 
to  him  unreason.  The  experience  of  mankind  and  the 
institutions  in  which  human  nature  has  expressed  it- 
self are  the  final  source  from  which  political  principles 
are  to  be  derived.  In  holding  to  this  idea  Burke 
places  himself  among  those  notable  thinkers  who  make 
up  the  historical  school  of  political  science.  His  eulogy 
of  Montesquieu  illustrates  the  type  of  his  philosophy, 
while  confirmation  is  found  in  the  indignant  and  reiter- 
ated attacks  on  Rousseau.^    Yet  Burke,  while  rejecting 

1  Works,  IV,  207-8.  ^  /^id.,  m,  459 ;  ly,  25  et  seq.,  211. 


184  POLITICAL  THEORIES 

metaphysical  and  a  ^priori  politics,  did  not  escape 
certain  presumptions  not  different  from  theirs.  He  was 
no  mere  empiricist.  When  he  bade  political  philosophy 
cease  to  go  further  in  its  research  than  where  actual 
institutions  were  revealed,  and  when  he  denounced  the 
innovating  spuit  as  fraught  with  peril,  he  spoke  in  the 
name  of  a  divine  and  a  natural  order  that  determined 
human  affairs.  God  and  Nature  were  both  adduced  as 
sponsors  for  his  dictates  of  political  wisdom.  Behind 
the  working  of  actual  systems  Burke  believed  there 
was  a  moral  purpose,  fixed  by  a  superior  intelligence, 
and  claiming,  therefore,  the  reverent  support  of  men. 
This  mystic  strain  of  thought  is  discernible  in  various 
places,  but  is  not  so  conspicuous  as  to  give  a  distinct 
character  to  his  doctrines.  In  other  representatives 
of  anti-revolutionary  theory  this  particular  strain 
assumed  great  prominence  and  shaded  off  into  utter 
obscurantism. 

3.   The  Marquis  de  Bonald 

The  Marquis  de  Bonald,  a  French  nobleman  whose 
life  (1754-1840)  spanned  the  revolutionary  age  in  its 
utmost  vicissitudes,  philosophized  in  the  form  and 
method  that  to  Burke  were  most  abhorrent.  Meta- 
physical and  religious  dogmas  at  the  foundation  and 
mathematical  precision  in  deduction  from  them  pro- 
duced a  system  of  political  science  as  harmonious  and 
symmetrical  as  that  of  Sieyes  or  Condorcet,  but  of  a 
content  contradicting  theirs  at  every  point,  and  sur-, 
passing  even  Burke  in  justification  of  the  ancien  regime. 
Bonald's  theory  is  set  forth  in  his  Essay  on  the  Natural 


POWER,   MINISTRY,   SUBJECTS  185 

Laws  of  the  Social  Order, ^  and  in  his  Primitive  Legisla- 
tion. The  Essay  and  the  "Prehminary  Discourse" 
of  the  Primitive  Legislation  exhibit  in  forceful  and  in- 
formal style  his  antipathy  to  the  dogmas  of  the  revolu- 
tion —  an  antipathy  less  emotional  and  more  purely 
intellectual  than  Burke's.  The  Primitive  Legislation 
presents  Bonald's  positive  system  in  a  series  of  formal 
and  closely  articulated  propositions,  beginning  with 
"Beings  and  their  Relations,"  and  running  through 
"Harmony  of  State  and  Religion"  into  the  details  of 
administration  and  education. 

Bonald's  point  of  view  is  that  of  Catholic  Christian 
philosophy.  His  reiterated  indictment  of  the  revolu- 
tionary theories  is  that  they  are  not  only  unsocial,  but 
atheistic  —  that  they  ignore  the  essential  oneness  of 
political  and  religious  society.  In  last  analysis  human 
knowledge,  Bonald  holds,  is  concerned  with  phenomena 
under  three  categories  —  cause,  means  and  effect. 
This  triad  of  categories,  which  inevitably  recalls  the 
generalizations  of  Campanella  and  Vico,^  is  exemplified, 
according  to  Bonald,  in  the  individual  man  by  the  will, 
the  organs  through  which  it  acts,  and  the  objects  to 
which  its  action  is  directed ;  in  the  family  by  father, 
mother,  children ;  in  society,  whether  political  or  re- 
ligious, by  a  sovereign  power,  the  agents  through  which 
it  acts,  and  the  subjects  under  it  (pouvoir,  ministre, 
sujets).    This  trilogistic  motif  runs  all  through  Bonald's 

^  Essai  analytique  sur  les  lots  naturelles  de  Vordre  social,  in  (Euvres, 
Tom.  I ;  Legislation  primitive  consideree  .  .  .  par  les  seules  himihres 
de  la  raison,  in  (Euvres,  Tom.  II,  III,  IV.  See  also  his  Thcorie  du 
pouvoir  politique  et  religieux  in  Tom.  V. 

^  Political  Theories  from  Luther  to  Montesquieu,  pp.  150,  385,  388. 


186  POLITICAL  THEORIES 

thinking  and  is  exploited  with  much  ingenuity.  The 
Christian  Trinity  obviously  enough  illustrates  it; 
and  it  is  made  the  basis  of  a  striking  interpretation  of 
world-history,  wherein  the  Hebrew  culture  is  said  to 
have  revealed  the  great  cause,  pagan  philosophy  to 
have  revealed  and  analyzed  the  effects,  Christianity 
to  have  revealed  the  universal  means  —  the  mediation 
of  Jesus  Christ. 

Social  philosophy  proper  Bonald  begins  with  a  defini- 
tion of  society.  It  is  the  association  of  like  beings  for 
the  purpose  of  their  reproduction  and  preservation.^ 
The  essence  of  such  union  is  the  inter-relationship  of 
the  three  elements,  i.e.,  of  powder  and  ministry  for  the 
welfare  of  the  subjects.^  Here  is  the  brief  formula 
that  sums  up  the  nature  of  family,  of  church  and  of 
state  —  a  sovereign  power  to  will,  a  ministry  to  execute, 
and  subjects  to  obey  and  profit  by  the  combination. 
Such  an  arrangement  expresses  the  universal  and  eternal 
rule  of  nature.  Such  was  the  beneficent  system  that 
prevailed  throughout  Christendom  till  the  sixteenth 
century.  Since  that  fatal  Lutheran  and  Calvinistic 
epoch  the  natural  order  has  been  overthrown  —  in  the 
state  by  popular  sovereignty,  in  the  church  by  Presby- 
terianism  and  in  the  family  by  divorce.^ 

To  sustain  his  anti-revolutionary  thesis  it  is  necessary 
for  Bonald  to  prove  the  rationality  and  utility  of  hered- 
itary absolute  monarchy  and  of  privileged  nobility; 

^  "  La  reunion  des  etres  semblables  pour  la  fin  de  leur  reproduc- 
tion et  de  leur  conservation."     CEuvres,  II,  133. 

' " .  .  .  Le  rapport  du  pouvoir  et  du  ministre  pour  le  bien  et 
I'avantage  des  sujets."     Ibid, 

» (Euvres,  II,  141. 


MONARCHY   IS  NATURAL  187 

for  these  represent  respectively  the  "power"  and  the 
"ministry"  of  his  natural  state.  Monarchy  he  argues 
is  in  a  sense  inevitable.  That  is  to  say,  the  definite 
impulse  of  some  one  human  will  is  what  in  fact  produces 
every  action.  In  popular  government  this  is  no  less 
true  than  in  monarchic.  Many  may  think  and  talk, 
but  some  one  in  last  analysis  gives  the  determining 
volition.  The  difference  between  a  monarchic  and  a 
popular  sovereign  is  merely  this,  that  in  one  it  is  always 
certain,  and  in  the  other  it  is  never  certain,  whose  will 
is  to  prevail.  Hence  the  greater  stability  of  the  monar- 
chic state ;  and  as  stability  is  of  the  essence  of  order, 
and  order  is  indispensable  to  the  preservation  of  men 
in  society,  monarchy  is  the  natural  system.  Bonald's 
complete  argument  goes  far  beyond  what  is  here  out- 
lined, and  results  in  this  comprehensive  dogma : 

The  public  power  must  be  one,  masculine,  property- 
owner  (proprietaire) ,  perpetual;  for  without  unity,  mascu- 
linity, property,  permanence,  there  is  no  real  independence.^ 

The  agent  or  servant  (ministre)  of  the  supreme  power 
is  the  nobility  {la  noblesse).  This  institution  Bonald 
upholds  with  reasoning  equal  to  Burke's,  if  not  with 
equal  eloquence.  The  nobility  has  its  end  not  in 
adorning  the  society  or  in  honoring  individuals,  but  in 
serving  the  state.  It  is  a  function,  a  duty.  It  affords 
an  opportunity  by  which  a  man  who  has  proved  his 
ability  by  success  in  serving  his  family  may  be  exalted 
into-  the  service  of  the  state.  Under  popular  govern- 
ments the  only  goal  of  success  in  private  life  is  wealth. 
The  man  who  enters  the  public  service  merely  uses  his 

1  (Euvres,  III,  p.  84. 


188  POLITICAL   THEORIES 

temporary  authority  as  a  means  to  increase  his  fortune. 
A  permanent  service  in  the  hands  of  those  whose  abihty 
is  assured  by  inheritance  or  personal  achievement,  is 
the  only  guarantee  of  an  administration  of  public  affairs 
that  can  conform  to  nature. 

For  the  dogma  that  nature's  rule  is  equality,  Bonald's 
scorn  is  extreme.  The  Declaration  of  Rights,  he  says, 
is  merely  a  series  of  indefinite  maxims  "put  at  the  head 
of  a  constitution  as  in  Virgil  the  false  shades  and  deceit- 
ful dreams  are  placed  at  the  entrance  to  Hades."  ^ 
Equality  is  incompatible  with  the  first  principle  of 
order ;  for  "order  among  men  is  nothing  but  the  art  of 
causing  some  to  go  ahead  of  others  so  that  all  may 
reach  the  goal  in  time  (d  temps)."  ^  And  Bonald 
points  out  with  grim  satire  that  the  Declaration  of 
Rights  contains  an  assertion  of  the  right  of  property, 
to  satisfy  those  who  by  luck  or  diligence  have  reached 
their  goal,  and  a  contradictory  assertion  of  equality, 
to  satisfy  those  who  are  yet  to  arrive. 

The  purely  theological  basis  of  Bonald's  politics  is 
to  be  seen  in  his  doctrines  as  to  sovereignty  and  law. 
The  power  of  the  monarch  is  not  sovereign.  The  funda- 
mental axiom  of  the  social  order  is  :  "  Sovereignty  is  in 
God;  .  .  .  power  is  from  God."  The  law  (la  hi), 
therefore,  is  "the  will  of  God  and  the  mle  of  man  for 
maintaining  society."  ^  Natural  law  and  natural  right 
have  for  Bonald  no  importance  except  so  far  as  they 
express  the  will  and  purpose  of  God.  Nature  signifies 
only  the  ensemble,  in  a  created  thing,  of  end  and  means 
for  its  realization.    At  different  stages  in  the  develop- 

'     J  GEuvres,  II,  186.  ^Ibid.,  II,  189.  =>  Ibid.,  II,  205. 


WRITTEN   LAWS  FUTILE  189 

ment  of  man,  for  example,  different  institutions  are 
natural  to  him.  In  the  domestic  condition  celibacy  is 
not  natural;  in  the  political  condition  it  is  natural.^ 
There  is  thus  no  invariable  criterion  of  natural  law  and 
right  save  in  the  will  of  the  Creator.  This  will,  and 
hence  the  substance  and  foundation  of  all  real  legisla- 
tion through  human  power,  Bonald  thinks  is  to  be 
found  clearly  revealed  in  the  Bible,  and  may  be  dis- 
covered also  in  the  immemorial  traditions  of  society 
when  they  have  not  been  corrupted  or  obscured  by 
written  codes.  The  unconsciously  developed  customs 
and  morals  (moeurs)  of  a  people  are  its  true  fundamental 
law;  and  nothing  is  more  futile  than  the  effort  to 
put  this  law  into  writing.  To  stereotype  the  consti- 
tution is  to  destroy  it.  On  the  title-page  of  his  Primitive 
Legislation  Bonald  places  the  sentence  :  "A  people  that 
has  destroyed  its  customs  in  seeking  to  give  itself 
written  laws,  has  obliged  itself  to  write  everything, 
including  its  customs."  This  he  considers  a  perfect 
reductio  ad  ahsurdum.  In  the  order  of  God  and  of  nature 
law,  like  custom,  has  no  precise  time  and  place  of  origin. 
"Bad  laws  have  a  beginning,  but  the  good,  emanating 
from  God,  are  eternal  as  he.  At  whatever  moment 
men  put  them  in  writing,  they  come  from  an  earlier 
time,  and  like  man  himself,  they  existed  before  they 
were  born." 

The  point  of  view  here  exemplified  was  not  peculiar 
to  Bonald,  but  belonged  to  the  whole  reactionary  school. 
It  is  found  in  Burke,  who  vents  his  scorn  for  "blurred 
shreds  of  parchment"  where  man  has  scribbled  what 

1  (Euvres,  II,  243. 


190  POLITICAL   THEORIES 

nature  derides.  Most  perfect  of  all,  however,  was  the 
clear  and  profound  argument  directed  against  the  theory 
of  the  written  constitution  by  the  most  brilliant  of  the 
continental  reactionaries,  Joseph  de  Maistre. 

4.  Joseph  de  Maistre 

This  distinguished  representative  of  French  litera- 
ture and  philosophy  became  a  Frenchman  only  by 
virtue  of  the  revolution  which  he  so  detested.  A 
Savoyard  nobleman,  he  shared  in  the  disaster  which 
overwhelmed  the  court  of  Turin  when  the  armies  of  the 
French  Republic  swept  over  Italy,  and  the  exile  that 
began  thus  in  1797  was  prolonged  to  1817  by  his  ap- 
pointment as  ambassador  to  the  Czar.  The  sojourn 
at  the  Russian  court  was  responsible  for  his  most  famous 
work,  the  Soirees  de  St.  Petersbourg,  wherein  all  the 
varied  phases  of  his  intellectual  interest  are  fully  illus- 
trated. Before  he  went  to  Russia,  however,  he  set 
forth  the  basic  features  of  his  political  philosophy  in 
his  Considerations  sur  la  France,  published  in  1797. 
The  doctrines  of  this  work  that  bore  specifically  on 
the  nature  of  constitutions  were  elaborated  in  a  separate 
monograph,  the  Essay  on  the  Source  of  Political  Consti- 
tutions^ (1814).  A  very  full  and  systematic  exposition 
of  his  ecclesiastical  philosophy  was  embodied  in  the 
volume  of  The  Pope  {Du  Pape),  written  when  Napoleon 
held  the  pontiff  in  captivity,  but  published  only  in 
1817. 

It  has  been  truly  said  that  Maistre's  political  theory 
is  inseparable  from  his  theology.    He  was  thoroughly 

*  Essai  sur  le  principe  ginerateur  des  constitutions  politiques. 


MONARCHY   IN   STATE   AND   CHURCH  191 

mediaeval  in  this  respect.  As  familiar  with  the  secular 
and  rationalistic  thought  and  learning  of  the  eighteenth 
century  as  Aquinas  was  with  that  of  the  thirteenth, 
Maistre,  like  St.  Thomas,  found  an  absolute  limit  to 
the  dominion  of  that  thought  and  learning  in  the  dog- 
mas of  the  Christian  faith,  and  the  authority  of  the 
Roman  Church.  His  conception  of  the  papacy  is 
not  far  from  that  of  Hildebrand.  The  monarchy  is 
indispensable  to  the  existence  of  the  church  as  it  is  to 
the  existence  of  the  state,  and  infallibility  is  the  attribute 
of  the  Pope  precisely  as  sovereignty  is  the  attribute 
of  the  secular  prince.^  The  two  terms  designate,  in- 
deed, but  a  single  concept,  regarded,  however,  from 
different  points  of  view.  It  has  been  by  no  mere  chance, 
Maistre  insists,  that  the  history  of  the  Christian  era 
shows  the  monarchic  principle  dominant  in  both  state 
and  church.  This  is  God's  way,  and  it  is  the  only  way 
in  which  man's  destiny  on  earth  can  be  fulfilled. 

From  such  premises  the  conclusion,  so  far  as  concerns 
the  theories  of  the  revolutionaiy  propaganda,  can 
easily  be  drawn.  The  fundamental  fault  of  these 
theories  is,  Maistre  feels,  an  overweening  confidence 
in  the  power  of  the  human  reason.  There  is  a  mystery 
in  the  state  that  mortal  intelligence  cannot  penetrate ; 
and  the  pretence  of  politicians  that  they  can  create 
governments  and  constitutions  is  the  emptiest  of 
dreams.  The  power  of  man  is  exhausted  in  naming 
and  modifying  that  which  already  exists.  To  hold 
that  a  state  can  be  called  into  being  by  an  act  of  the 
human  will  is  like  holding  that  a  tree  is  "made"  by 

*  Du  Pape,  liv.  i,  -passim. 


192  POLITICAL  THEORIES 

the  man  who  plants  and  cultivates  the  seed.  To  hold 
that  a  body  of  written  formulas  is  the  actual  constitu- 
tion, or  that  a  mass  of  written  statutes  are  the  real  laws 
of  a  people,  is  to  ignore  the  eternal  verities  of  political 
science.  The  indisputable  truth  of  the  matter,  Maistre 
declares,  is  summed  up  in  these  dogmas : 

The  roots  of  political  constitutions  exist  prior  to  all  written 
law. 

A  constitutional  law  is  and  can  be  only  the  development 
or  sanction  of  a  preexisting  and  unwritten  right. 

What  is  most  essential,  most  intrinsically  constitutional 
and  truly  fundamental,  is  never  written,  and  indeed  never 
could  be  without  destroying  the  state  (sans  exposer  VEtat). 

The  weakness  and  frailty  of  a  constitution  are  in  exact 
proportion  to  the  number  of  constitutional  provisions  that 
are  written.^ 

What  Maistre  has  chiefly  in  mind  in  the  development 
of  these  dogmas  is  the  futility  of  the  human  will  and 
purpose  in  the  supreme  matters  of  politics.  It  is  the 
vanity  of  vanities  to  expect  liberty  and  rights  to  flow 
from  the  drafting  of  a  constitution.  No  constitution 
results,  he  says,  from  deliberation.  Men  labor  upon  the 
circumstances  with  which  they  find  themselves  sur- 
roimded  and  produce  what  they  call,  and  seriously 
believe  to  be,  constitutions  and  laws;  but  the  prac- 
tical operation  of  their  system  is  likely  to  bring  results 
quite  different  from  what  was  expected.  No  nation 
can  give  itself  liberty  by  the  simple  process  of  promul- 
gating a  Declaration  of  Rights.  That  which  is  sought 
must  exist  in  the  soul  of  the  people  by  the  act  of  the 
Creator  in  order  that  it  may  be  actually  manifest  in 
1 "  Essai  sur  le  principe  generateur,"  in  (Euvres,  p.  116. 


THEORY   OF  THE   LAWGIVER  193 

the  institutions  of  government.  A  free  nation  may 
write  a  free  constitution,  but  a  free  constitution  can 
never  make  a  nation  free.  Self -consciousness  in  a 
people,  as  in  an  individual,  obstmcts  rather  than  pro- 
motes the  expression  of  the  tiTie  character.  "When  a 
nation  begins  to  reflect  upon  itself,  its  laws  are  already 
made." 

Maistre  does  not  depend  wholly  upon  his  abstract 
principles  for  support  in  this  attack  upon  the  theoiy 
of  the  written  constitution.  His  wide  knowledge  of 
history  and  of  contemporary  politics  enables  him  to 
sustaiQ  his  thesis  by  some  clever  interpretations  and 
comments.  From  antiquity  he  adopts  the  well-worn 
idea  of  the  lawgiver,  like  Solon  and  Lycurgus,  whose 
fortune  in  establishing  successful  institutions  was  due, 
Maistre  holds,  to  the  inspiration  through  which  the 
superman  was  able  to  divine  the  true  spirit  of  the 
people.-^  It  was  always  distinctive  of  such  a  lawgiver 
that  he  was  of  royal  or  aristocratic  blood,  that  he  re- 
frained from  putting  his  system  in  written  form,  that 
he  acted  rather  from  impulse  and  instinct  than  from 
reason,  and  that  his  chief  dependence  in  enforcing  his 
authority  was  a  certain  moral  force  that  constramed 
the  wills  of  men.  These  characteristics,  Maistre  main- 
tains, all  go  to  support  his  doctrine  that  no  laws,  in 
the  scientific  sense  of  the  word,  are  the  product  of  de- 
liberate human  volition ;  for  those  great  sages  to  whom 

1  "  Lorsque  la  Providence  a  decrete  la  formation  plus  rapide 
d'une  constitution  politique,  il  parait  un  homme  revetu  d'une 
puissance  indefinissable  :  il  parle  et  il  se  fait  obeir ;  mais  ces  hommes 
merveilleux  n'appartiennent  peut-etre  qu'au  monde  antique  et 
^  la  jeunesse  des  nations."    Considerations,  chap,  vi,  sec.  8. 


194  POLITICAL  THEORIES 

the  legislative  function  has  been  particularly  ascribed 
for  ages  were  really  oracles  of  God,  not  to  be  judged  by 
merely  human  standards. 

In  modern  conditions  Maistre  depends  largely,  of 
course,  on  the  English  constitution  as  the  type  of  what 
goes  on  in  fact  in  every  nation.  As  to  America,  which 
he  knows  will  be  cited  against  him,  he  will  only  say  that 
it  is  not  yet  time  to  cite  it.^  It  has  indeed  a  written 
constitution,  it  has  abjured  monarchy,  it  has  adopted 
many  advanced  democratic  institutions ;  but  much  of 
this  he  finds  to  be  merely  the  expression  of  ideas  and 
practices  that  have  been  familiar  in  the  history  and 
institutions  of  the  people,  and  thus  to  be  part  of  their 
true,  but  in  no  sense  of  a  new,  constitution.  As  to  what 
is  really  novel  in  their  system  —  what  is  the  outcome  of 
their  deliberation  and  discussion,  all  that  is  the  frailest 
of  frailties,  and  foredooms  the  system  to  weakness  and 
decay  .^ 

Of  all  constitution-making,  that  is  the  most  hope- 
lessly inane,  Maistre  of  course  believes,  which  pretends 
to  formulate  a  fundamental  law  that  will  meet  the 
requirements  of  every  nation  —  that  will  express  the 

1  This  was  written  probably  in  1796. 

2  As  an  example  of  the  over-confidence  of  the  Americans  in 
their  ability  to  determine  their  affairs  by  reflection  and  choice, 
Maistre  refers  to  the  project  of  a  new  city  to  be  founded  for  the 
capital  of  the  United  States.  The  plans  for  this  city,  he  says,  are 
circulating  through  Europe,  but  he  is  sceptical  as  to  their  realization. 
Very  likely  a  city  will  be  built,  he  admits,  but  "nevertheless,  there 
is  too  much  of  deliberation,  too  much  of  the  human,  about  the 
business ;  and  it  would  be  safe  to  wager  a  thousand  to  one  that  the 
city  will  not  be  built,  or  that  it  will  not  be  called  Washington,  or 
that  Congress  will  not  have  its  seat  there."  Considerations,  ohap. 
vii,  end. 


PROBLEM   OF  A   CONSTITUTION  195 

universal  principles  of  governmental  organization  and 
action.  The  jaunty  assurance  of  Sieyes,  Condorcet  and 
the  other  revolutionary  leaders  on  this  point  excites 
only  contempt  in  Maistre.  To  him  a  constitution  pre- 
simies  a  nation,  and  is  in  fact  nothing  but  the  solution 
of  the  following  problem  : 

Given  the  population,  the  customs  (mceurs),  the  religion, 
the  geographical  situation,  the  political  relations,  the  wealth, 
the  good  and  bad  qualities,  of  a  certain  nation,  —  to  find  the 
laws  that  are  suited  to  it.^ 

A  more  sane  and  rational  statement  of  the  problem 
than  this  could  hardly  be  made.  Yet,  taken  in  connec- 
tion with  the  other  doctrines  of  Maistre's  philosophy, 
it  puts  in  a  high  light  the  dreaiy  and  hopeless  character 
of  his  system  from  any  but  the  obscurantist  point  of 
view.  For  he  insists,  as  we  have  seen,  that  every 
effort  of  the  human  uitelligence  to  find  the  laws  suited 
to  the  nation's  needs  must  be  futile  —  that  to  formulate, 
or  even  to  become  conscious  of,  the  most  essential  of 
these  laws  is  to  destroy  the  state. 

5.   Ludwig  von  Holler 

The  prmciples  and  dogmas  of  the  anti-revolutionary 
philosophy  received  a  highly  systematic  formulation  at 
the  hands  of  a  German-Swiss  thinker,  Ludwig  von 
Haller,  of  Berne.  Haller  was  driven  into  exile  by  the 
sweep  of  the  revolution  over  his  native  city,  but  re- 
turned in  1806  to  become  professor  of  public  law  in  the 
university.  His  experiences  had  caused  him  to  ponder 
very  carefully  the  political  problems  of  the  day,  and 

^  Considerations,  chap,  vi,  end. 


196  POLITICAL  THEORIES 

he  returned  from  his  exile  satisfied  that  he  had  dis- 
covered the  cause  that  was  at  bottom  responsible  for 
all  the  existing  turmoil.^  This  was  the  almost  universal 
acceptance  among  civilized  peoples  of  the  idea  that 
authority  of  man  over  man  originated  in  voluntary 
bestowal  by  the  subject  individual.  The  deadly 
error  of  this  doctrine  was  manifest,  he  held,  particularly 
in  the  various  forms  of  the  social-contract  theory,  and 
he  set  himself  to  the  task  of  making  that  theory  forever- 
more  untenable  by  rational  beings.  The  outcome  of 
this  pious  purpose  was  his  work,  in  six  substantial 
volumes,  entitled :  Restoration  of  Political  Science,  or 
Theory  of  the  Naturally  Social  State  opposed  to  theChi- 
maera  of  the  Artificially  Civil  State}  Eighteen  years 
elapsed  between  the  completion  of  the  first  volume 
(1816)  and  the  appearance  of  the  last  (1834),  and  the 
trend  of  events  during  this  interval  was  manifestly 
away  from  the  conditions  that  he  held  to  be  ideal; 
yet  he  never  wavered  in  his  conviction  that  his  political 
theory  embodied  ultimate  truth  and  must  in  the  long 
run  be  realized  in  practice.  Indeed,  it  was  the  essence 
of  his  thought  that  however  divergent  in  appearance 
institutions  were  from  the  principles  of  his  system,  the 
proper  analysis  must  always  reveal  those  principles 
determining  the  life  and  action  of  the  institutions. 

As  indicated  by  the  title  of  his  work,  Haller  believed 
that  for  two  centuries  political  philosophy  had  been 

'  His  intellectual  processes  in  connection  with  this  matter  are 
set  forth  with  garrulous  naivete  in  the  preface  of  his  work. 

2  "  Restauration  der  Staats-Wissenschaft,  oder  Theorie  desnatiir- 
lich-geselligen  Zustands  der  Chimare  des  kiinstlieh-burgerlichen 
entgegengesetzt." 


AUTHORITY  NATURAL,  NOT  GRANTED    197 

wholly  perverted  by  the  doctrines,  for  which  he  held 
the  Roman  jurists  largely  responsible,  that  men  were 
by  nature  equal  and  that  authority  was  an  artificial 
concept  or  quality,  originating  in  delegation  by  the 
subject.  After  a  vigorous  polemic  against  these 
doctrines  and  the  philosophers  who  had  upheld  them,^ 
he  unfolds  in  a  rigidly  logical  manner  the  principles  of 
his  own  system,  tests  them  at  every  step  by  pure  reason 
and  history  and  often  also  by  uniformities  of  usage  in 
different  languages  (to  which  Haller,  like  Maistre  and 
Bonald,  attributes  great  importance),  and  expoimds  at 
great  length  the  organization  and  action  of  the  govern- 
ments that  illustrate  his  ideas. 

His  initial  grievance  against  the  contract  school  of 
thinking  is  its  assumption  that  it  particularly  expresses 
the  system  of  nature.  He  is  as  eager  to  speak  the  voice 
of  nature  as  are  his  adversaries,  but  her  voice  to  him  is 
far  different.  Not  equality  but  inequality  among  men 
is  her  rule  as  he  sees  it.  All  men  have  indeed  the  same 
rights,  which  are  fixed  by  the  divine  and  natural  law  of 
justice  and  love.  The  ancient  formula  —  Live  rightly, 
injure  no  one,  give  to  each  his  own  —  is  nature's  rule  of 
conduct  to  every  man,  and  insures  to  every  man  alik6 
the  justice  that  inheres  in  the  operation  of  these  in- 
junctions.    But  in  respect  to  the  power  to  satisfy  the 

1  His  attack  on  the  social-contract  idea  is  very  comprehensive : 
whether  considered  as  an  historical  fact,  or  as  a  mere  hypothesis, 
or  as  a  purely  philosophical  idea,  it  is  false,  impossible  and  self- 
contradictory.  This  broad  platform  of  condemnation  enables 
Haller  to  mete  out  a  goodly  measure  of  contempt  to  the  prevailing 
idealism  of  the  Germans.  Kant  he  frequently  refers  to  as  the 
♦'  sophist  of  Konigsberg."  For  an  opinion  of  Haller  by  Hegel,  see 
the  latter's  Werke,  VIII,  p.  309  et  seq. 


198  POLITICAL  THEORIES 

needs  of  mundane  life,  and  in  respect  to  the  kind 
and  intensity  of  these  needs,  nature's  rule  is  endless 
diversity  and  inequality.  This  fact,  Haller  holds,  is 
the  key  to  the  whole  system  of  social  relations.  Here 
is  the  open  but  hitherto  unnoticed  secret  of  human 
authority.  He  who  has  the  power  and  resources,  of 
whatever  kind,  that  enable  him  to  be  independent  of 
every  other  in  satisfying  his  own  needs,  and  to  con- 
tribute to  the  satisfaction  of  the  needs  of  others,  —  he 
is  the  natural  ruler,  and  those  who  depend  on  him  are 
natural  subjects. 

This  principle  explains  not  only  the  authority  of 
government,  but  also  every  other  species  of  authority 
exercised  by  man  over  his  kind.  It  appears  in  the  rela- 
tion of  the  child  to  the  adult,  of  the  weakling  to  the 
strong  man,  of  the  stupid  to  the  intelligent,  of  the  poor 
man  to  the  rich  man,  of  pupils  to  their  teacher,  of  the 
invalid  to  his  physician,  of  the  client  to  his  lawyer,  of 
the  mass  of  men  in  any  collective  enterprise  to  the 
leader.  Human  society  in  general  is  but  an  infinite 
multitude  of  such  relationships,  in  which  the  salient 
fact  is  control  on  the  one  side  and  subjection  on  the 
other.  Because  these  conditions  are  due  immediately 
to  the  diverse  and  unequal  circumstances  inherent  in 
earthly  existence,  they  must  be  regarded  as  natural  in 
the  strictest  sense  of  the  term.  Thus  Haller  establishes 
his  thesis  that  authority  needs  no  exercise  of  human  voli- 
tion as  its  basis,  and  that  no  distinction  can  be  made 
between  the  natural  and  the  civil  or  political  state,  so 
far  as  mastery  and  subjection  are  concerned. 

As  to  that  species  of  authority  which  is  called  political, 


ORIGIN  AND  NATURE    OF   STATE  199 

it  differs  from  other  species,  according  to  Haller,  in 
degree  only,  and  not  at  all  in  kind.  He  is  very  im- 
patient with  that  doctrine  by  which  a  grand,  dim, 
mysterious  entity  called  the  state  is  set  apart  from  and 
above  all  other  human  institutions.  Governmental 
authority  is  in  truth,  he  holds,  merely  the  name  for  an 
ensemble  of  superiorities  that  insures  to  its  possessor  a 
far-reaching  independence  and  an  abundance  of  means 
for  aiding  the  less  favored.  An  individual  who,  by 
reason  of  wealth,  energy,  sagacity,  or  other  qualities, 
inherent  or  acquired,  is  able,  without  dependence  on 
his  fellows,  to  satisfy  his  own  needs  and  theirs,  will 
inevitably  gather  about  him  a  group  of  less  happily 
situated  persons,  and  the  association  thus  naturally 
formed  is  a  political  society.  Or  a  group  of  equally 
powerful  and  equally  independent  men,  who  have  de- 
liberately united  for  the  promotion  of  their  coromon 
interests,  will  attract  a  group  of  less  powerful  and  de- 
pendent individuals,  and  will  exercise  over  them  the 
sway  of  a  government.  Here  is  the  whole  story  of  the 
origin  and  nature  of  the  state.  And  here  is  the  whole 
basis  of  a  classification  of  states.  In  the  first  of  the 
two  cases  described  there  appears  the  monarchy 
(Furstenthum) ,  in  the  second,  the  republic  {Republik), 
No  other  forms  are  possible. 

Political  authority,  as  thus  exj^lained,  is  at  the 
farthest  remove  from  the  character  ascribed  to  it  by 
the  revolutionary  school  of  thought.  It  originates 
not  in  any  conferences  or  discussions  involving  masses 
of  men,  but  partly  by  the  operation  of  natural  forces 
directly,  partly  by  individual  agreements  (Dienstver- 


200  POLITICAL  THEORIES 

trdge) ;  it  comes  not  from  below,  but  from  above ; 
it  arises  not  all  at  one  time,  but  at  various  times  by 
successive  aggregation;  and  thus  the  holder  of  the 
authority  has  it  not  at  all  from  the  ruled,  but  from 
nature,  and  therefore  through  the  grace  of  God. 
From  the  point  of  view  of  the  subject,  on  the  other  side, 
it  is  clear  that  he  gives  up  no  liberty  and  no  right  what- 
ever, but  serves  the  superior  either  because  naturally 
dependent  on  him,  or  voluntarily  for  the  sake  of  food, 
protection,  education,  or  other  things  that  make  life 
agreeable.  Subject,  like  ruler,  enjoys  his  just  and  law- 
ful (Rechtmdssige)  liberty  after,  as  well  as  before,  the 
establishment  of  the  political  bond.  There  is  nothing 
of  unrighteous  coercion  in  either  the  entrance  into  the 
bond,  the  continuance  in  it  or  the  termination  of  it. 
All  merely  illustrate  the  great  principle  of  nature,  that 
where  power  and  need  meet,  a  relation  of  mastery  and 
subjection  is  mevitable,^  and  inures  to  the  advantage 
of  all  concerned.  No  deliberate  volition  of  man  is 
necessary  to  this  result.  The  more  powerful  rules 
even  if  he  does  not  will  it  or  seek  it ;  ^  the  needy  is  sub- 
ject even  if  no  one  desires  service  from  him  and  every 
one  wishes  him  to  be  free. 

The  state,  thus,  is  not  different  in  character  from  the 
countless  other  relationships  that  make  up  the  sub- 

1  "  .  .  .  dass  da  wo  Macht  und  Bedixrfniss  zusammentreffen  ein 
Verhaltniss  entsteht,  kraft  welehem  der  ersteren  die  Herrsehaft, 
dem  letzteren  die  Abhangigkeit  oder  Dienstbarkeit  zu  Theil  wird, 
dass  aber  desswegen  nieht  minder  der  Gerechtigkeit  ganz  gemass 
undzubeiderseitigeVortheilabgeschlossenist."    Restauration,  1,359. 

2  Thus  the  man  of  genius  in  art,  literature  or  science  will  have 
followers,  Haller  observes,  and  his  authority  wiU  be  respected,  even 
though  he  knows  nothing  of  it. 


THE   STATE  A  NATURAL  SOCIETY  201 

stance  of  human  society.  It  differs  from  them  only  in 
the  degree  of  power  and  independence  concerned.  The 
ancient  distinction  between  natural  and  civil  or  political 
society  is  baseless.  For  what  is  called  civil  society  is 
but  the  highest  grade  of  natural  society.  Nor  is  any 
distinction  possible  between  the  state  and  other  asso- 
ciations on  the  basis  of  the  end  or  purpose  (Zweck) 
involved.  Justice,  human  rights,  general  welfare, 
culture,  etc.,  that  are  ascribed  by  various  thinkers  to 
the  state  as  its  peculiar  end,  are  in  fact,  Haller  holds, 
the  ends  of  many  other  forms  of  association  as  well. 
The  truth  is,  he  says,  that  states  as  such  have  no 
common  end,  but  differ  from  one  another  as  do  other 
kinds  of  association.  The  individuals  who  constitute 
the  state  have  certain  aims  that  are  common  to  all  of 
them  —  subsistence,  protection,  etc.,  —  but  these  are 
not  the  aims  of  the  state.  It  is  a  state  by  virtue  of  the 
power  that  makes  its  sovereign  above  such  aims.  Con- 
cisely defined,  the  state  is  a  complete  and  perfected 
social  union,  existing  for  itself  and  through  itself  alone.^ 
As  to  the  independence  that  makes  a  man  or  group  of 
men  the  nucleus  of  such  an  association  and  the  sover- 
eign, it  is  nothing  of  an  innate  or  indefeasible  right. 
It  is  merely  a  gift  of  fortune  {Glilcksgut),  and  the  highest 
of  such  gifts.  It  may  be  acquired  by  one's  own 
strength  and  exertion,  by  contract  or  gift  from  other 
possessors,  by  happy  chance  (zufdlliges  Glilck),  or,  as 
is  most  usual,  by  a  combination  of  all  three  of  these 
methods.  It  may  be  lost  by  any  of  the  chances  that 
history  makes  so  familiar;    for  what,  Haller  asks,  is 

1  Cf.  Restauration,  I,  463. 


202  POLITICAL  THEORIES 

political  history  but  the  narrative  of  the  acts  and 
conditions  through  which  individuals  and  corporations 
have  acquired,  maintained  and  lost  again  their  complete 
independence?  The  important  consideration  is  that 
the  possession  of  political  sovereignty  by  any  particular 
person  at  any  particular  time  is  a  matter  of  fact,  and 
not  of  right  in  any  moral  sense. 

As  to  the  manner  of  using  this  supreme  power,  there 
is  plenty  of  room  for  the  discussion  of  right.  Since 
the  sovereign  is  such  merely  by  reason  of  his  power  and 
independence,  his  conduct  of  the  administration  is 
merely  the  management  of  his  own  affairs,  and  cannot 
be  legally  (Rechtlich)  called  in  question  by  any  one. 
But  like  every  individual  the  sovereign  is  morally 
bound  so  to  manage  his  affairs  as  not  to  injure,  but 
positively  to  promote,  the  rights  of  others.  More 
specifically,  his  function  is  to  satisfy  the  needs  of  his 
subjects,  and  not  to  increase  those  needs  in  number  or 
intensity.  Where  such  increase  appears,  there  is 
tyranny.  The  sum  of  the  whole  matter  is  that  the 
sovereign  is  bound  only  by  the  moral  law,  which  Haller 
identifies  with  the  law  of  nature  and  of  God.  Under 
this  law  political  society  exists  for  the  amicable  ex- 
change of  reciprocal  benefits,  and  this  end  limits,  in  a 
moral  sense,  the  authority  of  the  ruler.^  Haller's 
exposition  of  this  doctrine  offers  nothing  essentially 
different  from  what  was  commonplace  in  political 
philosophy  for  two  thousand  years  before  him. 

Between  the  two  possible  kinds  of  state,  monarchy 
and  republic,  there  is  no  basis,  in  Haller's  theory,  for 

*  Restauration,  I,  514. 


PRINCIPLES  OF  MONARCHY  203 

a  preference  a  priori.  Each  is  a  natural  product  of 
particular  circumstances.  History  assures  him  that 
monarchy  has  been  more  common,  more  efficient  and 
more  durable,  but  he  bases  no  absolute  judgment  as 
to  abstract  merit  on  this.  Three  species  of  monarchy 
are  discoverable,  he  holds,  in  both  experience  and  logic  : 
the  patrimonial  {Erb-  und  Grundherrliche) ,  the  military, 
and  the  spiritual  (Geistliche) .  The  first  is  based  on 
the  possession  of  a  great  landed  domain,  the  second  on 
successful  military  leadership  and  conquest,  the  third 
on  the  promulgation  and  establisliment  of  an  intellec- 
tual, a  moral,  or  particularly  a  religious  dogma  or  creed. 
Usually  a  monarchy  founded  on  the  second  or  third 
principle  drifts  sooner  or  later  into  the  first  class. 

Haller's  long  and  systematic  analysis  of  the  organiza- 
tion, action,  and  principles  of  perpetuation  (Mak- 
robiotic,  he  terms  the  discussion  of  these  principles) 
characteristic  of  each  of  these  species,  is  a  mass  of  corol- 
laries derived  very  logically  from  the  theory  already 
described.  All  the  acts  and  policies  of  the  prince  are 
to  be  judged  like  the  acts  and  policies  of  any  other 
individual  in  carrying  on  his  private  affairs.  Thus, 
making  war  is  but  the  exercise  of  the  natural  right  of 
self-defense,  and  the  troops  of  the  prince  are  merely 
his  hired  or  voluntary  assistants.  Compulsory  service 
in  the  prince's  army  is  wholly  without  warrant,  ac- 
cording to  Haller,  and  the  practice  of  conscription  is 
denounced  as  one  of  the  most  deplorable  results  of  the 
revolutionary  philosophy.^  Again,  the  prince  is  the 
supreme  law-maker,  but  by  no  means  the  sole  law-maker. 

^  Restauration,  II,  84  et  seq. 


204  POLITICAL  THEORIES 

He  is  a  law-maker  only  as  every  man  is  a  law-maker. 
For  law,  Haller  argues,  is  but  a  binding  expression  of  will, 
and  whatever  is  just  is  binding ;  therefore,  since  every 
man  may  express  his  will,  every  such  expression  that 
is  just  is  law.  ^  The  prince's  law  differs  from  the  private 
man's  only  in  the  extent  of  the  power  that  insures  the  en- 
forcement. Likewise  the  judicial  power  {Gerichtsharkeit) 
belongs  to  the  prince  only  as  it  belongs  to  eveiy  man.  It 
is  but  a  phase  of  the  natural  duty  to  help  another  in  the 
maintenance  of  his  right.  Finally,  the  revenue  of  a 
prince  must  on  principle  and  as  a  iiile  be  derived  from 
his  own  property.  Taxes  may  be  imposed  on  serfs  or 
on  those  vanquished  in  a  just  war ;  but  the  prince  has 
no  right  a  priori  to  take  the  property  of  his  free  sub- 
jects, and  if  circumstances  make  it  imperative,  for  the 
good  of  both  prince  and  subjects,  that  they  should  help 
him  financially,  it  must  be  done  through  free  grant  by 
the  subjects.^ 

A  republic,  in  Haller's  theory,  differs  from  a  mon- 
archy only  in  that  the  power  and  independence  consti- 
tuting sovereignty  are  possessed  by  a  corporate  group 
rather  than  by  an  individual.^  The  republic  is  not  pre- 
eminently or  distinctively  a  product  of  nature.  Men 
have  no  innate  tendency  to  this  species  of  corporation. 
In  flat  rejection  of  Burke's  scornful  dogma ^  that  the 
state  is  not  to  be  likened  to  a  commercial  or  other  utili- 

*  For  the  theory  of  law  and  legislation  see  Restauration,  II,  cap.  32. 

2  Ibid.,  II,  317  et  seq. 

2  "Von  den  Republiken  oder  den  freien  Communitaten,"is  the  title 
of  Haller's  Zweiter  Theil,  constituting  the  sixth  volume  of  the 
Restauration. 

4  Supra,  p.  179. 


OBJECTS   OF   THE   REPUBLIC  205 

tarian  association,  Haller  holds  that  there  is  no  essential 
difference  between  them.  When  a  number  of  men, 
substantially  equal  in  power  and  therefore  naturally 
independent  of  one  another,  unite  for  the  promotion  of 
some  common  interest,  and  by  virtue  of  their  union  and 
strength  become  independent  of  every  other  society  or 
individual,  there  is  a  republic.  The  specific  end  for 
which  the  society  is  formed  may  be  of  any  description, 
and  is  by  no  means,  as  some  pseudo-philosophy  pre- 
tends, necessarily  the  maintenance  of  justice.  As  a 
matter  of  experience  the  ends  most  usually  sought  by 
the  members  of  a  commonwealth  are  security  against 
external  foes,  better  food  supplies,  extension  of  com- 
merce, mcrease  of  property,  and  the  promotion  of 
religion,  science  or  art.  These  ends  are  of  course  the 
basis  of  numberless  corporations  that  have  not  the 
character  of  a  commonwealth.  All  that  distinguishes 
the  latter  is  the  possession  of  power  and  resources 
enough  to  make  it  wholly  independent. 

We  need  not  follow  into  details  Haller's  discussion 
of  the  republic.  It  is  everywhere  saturated  with  the 
mediaevalism  that  characterizes  his  treatment  of  the 
monarchy.  But  despite  the  backward  look  of  his 
system,  that  makes  it  so  much  more  a  justification  of 
the  past  than  a  forecast  of  the  future,  some  of  the  most 
characteristic  features  of  his  thought  have  been  very 
conspicuous  in  later  political  and  social  science.  Thus 
the  emphasis  laid  by  him  on  the  mechanical,  as  con- 
trasted with  the  volitional,  influences  underlying  polit- 
ical institutions  suggests  the  later  fashion  of  interpret- 
ing all  state  life  in  terms  of  economic  analysis.    His 


206  POLITICAL  THEORIES 

refusal  to  see  any  distinction  in  kind  between  the  state 
and  other  forms  of  association  places  him  in  line  with 
certain  phases  of  sociological  theory.  His  uncom- 
promising hostility  to  the  idealism  that  enveloped  the 
concepts  of  politics  in  a  metaphysical  mist  illustrates 
a  type  of  thought  that  was  to  find  noteworthy  expression 
in  the  doctrines  of  Comte  and  of  the  English  Utilitarians. 
In  leaving  Haller  it  is  not  uninteresting  to  reflect 
that  while  he  doubtless  established  his  chief  scientific 
thesis,  namely,  that  political  authority  is  natural  rather 
than  artificial,  he  at  the  same  time  furnished  the  revo- 
lutionists with  a  justification  of  their  proceedings  on 
his  own  principles.  For  it  is  very  easy  now  to  see  — 
what  was  less  obvious  in  Haller's  day  —  that  the  net 
result  of  the  transformations  in  Europe  was  the  assump- 
tion by  certain  social  classes  of  the  authority  that 
was  naturally  theirs  by  virtue  of  their  superiority  in 
moral,  intellectual  and  economic  power. 

SELECT  REFERENCES 

Bluntschli,  Geschichte,  Kap.  16.  Bonald,  Essai  analytic ;  Legis- 
lation primitive,  Discours  preliminaire.  Burke,  Works,  Vols. 
Ill,  IV.  Faguet,  Politiques  et  Moralistes,  pp.  1-121  (Bonald  and 
Maistre).  Haller,  Restauration,  Band  I,  Vorrede.  Laski,  Author- 
ity in  the  Modern  State,  chap,  ii  (Bonald).  Maistre,  Considera- 
tions sur  la  France,  chap,  vi ;  Essai  sur  le  principe  generateur. 
Morley,  Miscellanies,  II,  pp.  257-335  (Maistre).  Sybel,  His- 
torische  Zeitschrift,  Vol.  I,  Essay  on  Maistre. 


CHAPTER  VI 

THE  ENGLISH   UTILITARIANS 

1.  Progress  of  Social  and  Political  Reform 

The  ideas  that  underlay  the  American  and  French 
revolutions  at  no  time  lacked  sympathy  and  support  in 
England.  Opposition  to  every  tendency  toward  in- 
crease of  power  in  the  monarch  was  the  traditional 
policy  ofthe  aristocratic  leaders  who  dominated  Parlia- 
ment,  especially  in  the  Whig  party.  Outside  of  the 
aristocratic  circle,  however,  an  insistent  opinion  de- 
veloped in  the  last  quarter  of  the  eighteenth  century 
that  was  adverse  not  only  to  royal  power  but  also  to 
the  power  of  Parliament  itself.  A  succession  of  agita- 
tors —  John  Wilkes,  Home  Tooke  and  others  —  and 
a  group  of  pamphleteers  who  were  less  conspicuous  but 
not  less  thoughtful  —  Cartwright,  Priestley,  Price  — 
voiced  a  feeling  in  the  English  middle  class  that  the 
House  of  Commons  was  neither  in  its  source  nor  in  its 
action  a  representative  of  popular  liberty.  Before  the 
outbreak  of  the  French  revolution  this  sentiment  gained 
sufficient  influence  in  the  parties  themselves  to  lead 
to  a  formal  project  for  parliamentary  reform.  The 
project  failed,  and  when  the  proceedings  in  France  took 
on  their  extreme  form  it  became  impossible  to  make 
further  progress  in  England  in  the  desired  direction. 

Under  the  influence  of  the  republican  movement  in 
France,  however,  an  advanced  radicalism  gained  many 

207 


208  POLITICAL  THEORIES 

adherents  across  the  channel  in  Great  Britain. 
Thomas  Paine  and  William  Godwia  were  perhaps  the 
most  significant  exponents  of  the  radical  dogmas. 
Of  Paine's  ideas  we  have  already  taken  notice.^  God- 
j^'s  attack  on  the  whole  doctrine  of  private  property 
and  political  organization  made  less  impression  on  his 
contemporaries  than  on  the  succeeding  generations 
in  which  socialism  and  anarchism  took  form.^  Yet 
his  views,  as  well  as  Paine's,  found  many  supporters  in 
the  non-political  classes  of  England ;  and  the  demands 
among  these  classes  for  natural  rights  and  a  working 
popular  sovereignty  had  to  be  repressed  with  such 
severity  as  to  leave  the  radical  movement  practically 
paralyzed  until  the  wars  of  the  Napoleonic  era  were 
ended. 

During  this  interval,  however,  the  social  transforma- 
tions that  were  effected  by  the  revolution  in  industrial 
method  and  organization  brought  a  powerful  support 
to  the  doctrines  that  had  been  in  abeyance.  jThe  trades- 
union  movement  and  a  variety  of  demands  for  a  wider 
realm  of  free  activity  among  the  lower  classes  of  society 
became,  after  1820,  a  manifest  source  of  serious  danger 
to  the  existing  governments  The  industrial  classes 
began  to  insist  with  dangerous  vigor  on  the  reform  of 
Parliament  that  would  give  them  some  share  of  the 
power  exercised  by  it.  Demands  for  a  readjustment 
of  the  electoral  districts  were  accompanied  by  demands 
of  a  farther-reaching  kind  for  great  exi;ension  of  the 
suffrage,  for  the  secret  ballot  and  for  an  immediate 
responsibility  of  members  of  Parliament  to  their 
*  Supra,  p.  110.  '  Infra,  ohap.  ix. 


PARLIAMENTARY   REFORM  209 

constituents.  Some  measure  of  concession  to  these 
demands  was  involved  in  the  great  reform  bill  of  1832. 
This  bill  waS;  however,  a  distinctively  Whig  measure 
and,  therefore,  lacked  the  quality  of  thoroughness  and 
logical  principle  that  was  so  antipathetic  to  Whig 
policy  in  general. 

In  the  turmoil  of  agitation  during  the  decade  pre- 
ceding the  achievement  of  the  reform  but  a  single  group 
of  the  agitators  displayed  a  coherent  and  systematic 
body  of  principle.  This  was  the  group  that  clustered 
about  Jeremy  Bentham  and  recognized  in  his  dogmas 
the  core  of  a  sound  political  system.  Almost  all  the 
radicals  who  made  the  reform  movement  famous  ac- 
knowledged some  degree  of  relationship  to  Bentham's 
philosophy.  ;Romilly  and  Brougham  and  John  Cam 
Hobhouse  and  Sir  Francis  Burdett  and  William  Cob- 
bett  all  drew  inspiration  from  that  source.  Their 
activity,  however,  was  chiefly  by  way  of  partisan  polit- 
ical propaganda  and  not  through  appeal  to  the  reflec- 
tive sense.  Their  support  came  from  the  unthinking 
classes  very  largely.  The  smaller  group  of  men  devoted 
themselves  to  a  concerted  effort  for  a  coherent  phil- 
osophical system  that  should  supply  the  unassailable 
foxmdation  for  the  practical  measures  proposed.  This 
little  group  gave  to  political  science  the  only  distinc- 
tive contribution  that  was  furnished  by  British  thought 
until  after  the  middle  of  the  nineteenth  century. 
Benthamite  utilitarianism  and  individualism  made  for|l 
itseK  a  place  in  English  thought  and  in  world  philosophy !  i 
of  an  importance  that  was  out  of  all  relation  to  the  small  j  j 
number  of  thinkers  who  sustained  it.  ' ' 


210  POLITICAL   THEORIES 

Bentham  lived  to  see  the  substantial  triumph  of  the 
movement  for  parliamentaiy  reform.  He  died  in  the 
year  of  the  success  of  the  measure.  Long  before  this 
he  had  seen  the  realization  of  many  reforms  that  had 
been  near  to  his  heart  in  legal  procedure  and  adminis- 
tration. After  his  death  the  radical  doctrine  that  he 
had  contributed  so  much  to  promote  continued  to  dis- 
turb the  serenity  of  the  British  political  mind.  The 
Chartist  movement,  with  its  far-reaching  demands  for 
democracy,  was  based  on  principles  to  which  the  Ben- 
thamite philosophy  had  given  a  firm  foundation.  The 
remodelliag  of  municipal  administration,  the  sweeping 
reform  of  the  poor  law,  the  abandonment  of  protection- 
ism, and  finally  the  great  advance  toward  universal  suf- 
frage insured  by  the  reform  bill  of  1867 — all  these  were 
impregnated  with  the  spirit  of  the  utilitarian  philosophy. 

While  these  prodigious  transformations  in  the  social 
and  political  system  of  Great  Britain  were  going  on, 
the  philosophical  system  that  was  associated  with  them 
lived  its  life  and  passed  into  a  declme.  It  had  taken 
its  form  through  Bentham  and  James  Mill ;  it  prac- 
tically lost  form  and  all  cohesion  with  the  maturity  of 
John  Stuart  Mill.  Its  influence  can  readily  enough  be 
traced  in  many  leading  aspects  of  political  philosophy 
at  the  end  of  the  nineteenth  century,  but  here  its  prin- 
ciples are  dissociated  from  one  another  and  animate 
independently  various  systems  of  thought  that  would 
have  been  repellent  to  Bentham  and  the  elder  Mill. 
While  it  lasted,  however,  English  utilitarianism  was 
one  of  the  most  potent  forces  in  the  intellectual  life  of 
all  Western  Europe  and  of  America  as  well. 


THE   ENGLISH   UTILITARIANS  211 

2.  Jeremy  Bentham 

When,  upon  the  cessation  of  the  long  wars  in  1815, 
the  dormant  program  of  poHtical  and  social  reform  was 
vigorously  revived,  Bentham  had  been  active  in  the 
field  for  forty  years.  Since  1776  he  had  maintained, 
through  the  widest  extremes  of  favoring  and  of  adverse 
conditions,  a  pressure  for  the  adoption  of  new  principles 
and  new  practices  in  government  and  law.  The  normal 
English  suspicion  of  innovation  had  been,  by  the  course 
of  events  in  France,  hardened  into  an  impassable  bar- 
rier, and  Bentham's  endless  and  ingenious  propositions 
for  change  had  been  bootless.  The  post-bellum  prob- 
lems that  enlisted  British  attention,  however,  brought 
his  spirit  and  his  philosophy  into  prominence  and  in- 
fluence. A  number  of  strong  and  eager  minds  received 
from  him  the  impulse  that  shaped  their  contributions 
to  various  branches  of  social  science.  Among  the 
notable  names  of  this  group  are  those  of  David  Ricardo, 
James  Mill,  George  Grote,  John  Austin  and  John 
Stuart  Mill,  who  in  ethics,  economics,  history  and  juris- 
prudence made  a  deep  impression  on  the  intellectual 
life  of  their  time.  Because  the  systems  of  all  these 
men  and  many  others  were  clearly  rooted  in  that  of 
Bentham,  he  became  the  symbol  of  a  powerful  current 
in  the  general  movement  of  political  philosophy.^ 

The  starting-point  of  Bentham's  political  theory 
was  his  conviction  that  there  was  need  of  extensive 

1  AU  aspects  of  the  Benthamite  group  and  its  thought  receive 
full,  just  and  sympathetic  treatment  in  Sir  LesUe  Stephen's  ad- 
mirable work,  The  English  Utilitarians.  These  volumes  can 
never  be  superseded  as  an  exposition  of  a  remarkable  episode  in 
the  history  of  the  human  intellect. 


212  POLITICAL   THEORIES 

/,  reforms  in  English  law  and  judicial  procedure.  His 
father  wished  him  to  become  an  ornament  of  the  legal 
profession  and  guided  his  education  with  that  end  in 
view.  At  the  very  entrance  to  the  career  of  a  practi- 
tioner, however,  the  young  man  balked.  He  foimd 
himself  confronted  with  a  mass  of  obscurities,  fictions 
and  formahties  that  were  altogether  revolting  to  him. 
The  critical  faculty  was  most  conspicuous  in  his  in- 
tellectual equipment,  while  respect  for  the  anticpe  and 
the  historical  per  se  was  entirely  lacking.  Among  the 
venerable  principles  and  practices  of  conservative  Eng- 
land's law  and  politics  he  became,  therefore,  a  veritable 
bull  in  a  china  shop.  His  demands  for  the  removal 
of  obvious  abuses  in  the  substance  and  administration 
of  the  law  were  met  by  the  usual  conservative  eulogies 
of  the  system.  The  Common  Law,  he  was  told,  was 
sanctified  by  its  ancient  origin  and  centuries  of  gi'owth 
and  by  the  quality  impressed  upon  it  by  the  fine  intel- 
lects of  the  jurists  who  loomed  so  large  in  the  glories 
of  the  national  tradition.  To  meddle  with  the  struc- 
ture that  they  had  reared  was  to  court  disaster  to  the 
state. 

For  such  views  Bentham  had  no  respect  whatever. 
Neither  the  antiquity  of  an  institution,  nor  the  reputa- 
tion of  any  man  past  or  present  who  was  responsible  for 
it,  earned  any  weight  with  him  in  its  justification.  The 
law  of  today  must  be  shaped,  he  held,  by  the  legislator 
^  *  of  today  in  accordance  with  the  needs  of  today ; 
and  the  sole  criterion  of  those  needs  must  be  the  greatest 
good  of  the  greatest  number  of  men.  Contribution  to 
this  good  will  justify  the   summary  abrogation  of  a 


THE   RULE   OF  UTILITY  213 

practice  or  a  principle  that  originated  a  thousand  years 
ago  and  has  been  approved  by  the  best  minds  of  thirty 
generations.  Contribution  to  this  good  will  justify  the 
introduction  by  law  of  a  practice  or  a  principle  that 
never  till  the  present  day  entered  the  thought  of  man. 

Thus  Bentham  banished  from  debate  the  whole 
apparatus  of  historical  research  and  all  the  implica- 
tions of  sanctity  that  were  mvolved  in  mere  age  and 
mystery.  He  did  not  deny  that  the  long  prevalence  of 
a  law  or  an  institution  might  suggest  that  it  was  useful. 
There  was  nothing  conclusive,  however,  about  the 
suggestion. 

The  test  of  utility  —  of  contribution  to  the  greatest 
good  of  the  greatest  number  — -  really  proved  to  be,  in 
_last  analysis,  conformity  to  a  body  of  principles  worked 
out  by  Bentham  himself  as  a  complete  and  final  guide 
for  all  who  might  be  interested  in  morals  and  legisla- 
tion. The  philosopher's  conviction  that  he  had  deduced 
from  himian  nature  itself  the  universal  motives  of  men's 
actions  and  therefore  the  certain  rules  for  regulating 
their  social  relations,  was  deep  and  unwavering.  Legis- 
lation became  in  his  mind  merely  the  process  of  shaping 
these  fundamental  rules  so  as  to  fit  with  nicety  the 
superficial  peculiarities  of  a  particular  community; 
the  substantial  requirements  for  all  communities  were 
the  same.  On  the  basis  of  this  comfortable  conviction 
Bentham  not  only  contributed,  sometimes  as  a  volun- 
teer and  sometimes  on  mvitation,  to  the  codification 
and  revision  of  private  law  in  a  number  of  comitries, 
but  he  even  offered  to  furnish  on  demand  to  any  people 
a  code  that  he  could  guarantee  as  sound  in  every  partic- 


214  POLITICAL  THEORIES 

ular  and  certain  to  promote  the  true  end  of  every 
government,  the  greatest  good  of  the  greatest  number.^ 
It  is  not  necessaiy  here  to  enlarge  upon  the  vaHdity 
or  othei*wise  of  Bentham's  ethical  system,  or  upon  the 
influence,  midoubtedly  very  great,  of  his  principles  of 
lawmaldng,  especially  codification,  in  the  rising  science 
of  jurisprudence.  For  the  substance  of  his  distinctively 
political  theoiy  we  have  to  go  to  one  of  the  first  of  his 
multitudinous  writings  that  was  published,  the  Frag- 
ment on  Government}  This  work  was  written  in  1776, 
when  Bentham  was  but  twenty-seven  years  old ;  yet, 
though  he  hved  to  be  eighty-four  and  wrote  to  the 
very  end,  it  was  never  superseded  as  a  presentation  of 
his  fundamental  principles  of  political  science.  The 
work  was  evoked  by  Blackstone's  famous  Commen- 
taries on  the  Laws  of  England,  wherein  was  embodied  a 
complacent  optimism  that  singularly  excited  Bentham. 
The  commentator  went  deeply  into  the  history  of  the 
law,  and  in  the  preoccupation  of  his  antiquarian  in- 
terest he  from  time  to  time  gave  eulog}^  and  justifica- 
tion to  customs  and  principles  that  had  long  lost  the 

^  He  was  especially  hopeful  of  securing  the  adoption  of  his  ideas 
by  the  temporarily  triumphant  revolutionists  in  Spain  and  Portugal 
in  the  twenties  of  the  nineteenth  century,  and  his  influence  was  not 
without  importance  both  in  these  lands  and  in  the  newly  independ- 
ent repubUcs  of  Spanish  America.  For  the  United  States  his 
admiration  was  great,  and  he  conceived  a  project  for  assuring  to  the 
republic  the  advantages  of  a  truly  scientific  body  of  law.  In  1811 
he  made  a  formal  proposal  to  President  Madison  that  authority  to 
frame  a  code  should  in  some  way  be  conferred  upon  the  philosopher. 
For  a  full  account  of  this  queer  incident,  see  Reeves,  "Jeremy 
Bentham  and  American  Jurisprudence,"  an  address  before  the 
Indiana  State  Bar  Association,  1906. 

2  In  the  Works,  Vol.  I.  An  excellent  reprint  of  the  first  edition 
is  that  of  F.  C.  Montague,  whose  Introduction  is  most  valuable. 


BENTHAM   ON  BLACKSTONE  215 

original  ground  for  their  existence  and  continued  in  use 
only,  as  Bentham  believed,  to  enhance  the  dignity  and 
emoluments  of  the  bench  and  the  bar.  Blackstone's 
opening  chapters,  moreover,  on  law  in  general  and  the 
basis  of  legislation,  embodied  a  feeble  and  incoherent 
collection  of  current  ideas  about  the  nature  and  origin 
of  government  ^  —  ideas  that  ran  counter  to  Bentham 's 
whole  conception  of  the  subject.  Accordingly  the 
Fragment  was  produced  primarily  as  an  annihilating  ^^ 
criticism  of  Blackstone.  Incidentally  to  this  feature 
the  positive  doctrines  of  Bentham  were  set  forth  in 
pretty  complete  and  more  or  less  systematic  form. 

As  to  the  origin  of  political  society,  he  practically 
disclaimed  all  interest  in  the  subject.  The  distant  past 
could  furnish  no  light,  he  believed,  to  guide  our  reason- 
ing on  the  rights  and  duties  of  the  present.  Even 
if  it  could  be  shown  that  deep  m  the  bygone  ages  a 
formal  contract  bound  all  then  living  Englishmen  in  a 
social  and  pohtical  union,  it  would  have  no  special 
bearing  on  the  laws  and  constitution  of  today.  Nor 
would  such  a  contract,  if  regarded  not  as  an  historical 
fact  but  merely  as  a  logical  concept,  explain  any  asser- 
tion of  authority  by  government  or  any  obligation  of 
obedience  on  the  part  of  any  subject.  Every  form  of  a 
contract  theory  of  the  state  is  rejected  by  Bentham.^ 
Contract,  consent,  agreement,  furnish  no  basis  for  polit- 
ical rights  and  duties.  The  ultimate  reason  why  men 
submit  to  the  requirements  of  law  and  of  government  is, 

1  See  above,  p.  73. 

2  Fragment,  chap,  i,  sees,  xxxvi,  et  seq.  Bentham  expands,  with- 
out modifying,  the  argument  of  Hume.  Cf.  Political  Theories  from 
Luther  to  Montesquieu,  pp.  383-4. 


216  POLITICAL  THEORIES 

not  that  they  or  their  ancestors  have  promised  to  do  so, 
but  that  it  is  for  their  interest  to  do  so.  In  Bentham's 
own  well-known  phrase,  men  obey  the  laws  because 
"the  probable  mischiefs  of  obedience  are  less  than  the 
probable  mischiefs  of  disobedience."  Governments 
exist  because  they  are  believed  to  promote  the  happiness 
of  those  who  live  under  them. 

The  recognition  of  this  simple  and  all-pervading 
motive  of  human  action,  a  calculated  self-interest, 
renders  superfluous  the  historical  guesses  and  the  dia- 
lectical fictions  by  which  philosophers  of  the  contract 
school  explain  the  difference  between  the  natural  and 
the  political  or  civil  state  of  man.  Discard  all  such 
rubbish,  Bentham  says,  and  look  at  the  simple  facts  of 
the  case.  Consider  any  group  of  men  living  in  more  or 
less  intercourse  with  one  another.  If  in  this  group  there 
is  on  the  part  of  some  of  the  members  a  habit  of  paying 
obedience  to  other  members,  whether  one  or  more  in 
number,  the  group  altogether  constitutes  a  political 
society.  If  there  is  in  the  group  no  such  habit  of  obedi- 
ence, the  group  is  a  natural  society.  That  is  all  there 
is  of  it.-^ 

The  libraries  of  disquisition  on  the  state  of  nature, 
with  its  iniquities  or  its  blessedness  according  to  the 

^Fragment,  chap,  i,  sec.  x:  "When  a  number  of  persons 
(whom  we  may  style  subjects)  are  supposed  to  be  in  the  habit  of 
paying  obedience  to  a  person,  or  an  assemblage  of  persons,  of  a 
known  and  certain  description  (whom  we  may  call  governor  or 
governors),  such  persons  altogether  (subjects  and  governors)  are  said 
to  be  in  a  state  of  political  society.''  Sec.  xi :  ".  .  .  When  a  num- 
ber of  persons  are  supposed  to  be  in  the  habit  of  conversing  with 
each  other,  at  the  same  time  that  they  are  not  in  any  such  habit 
as  mentioned  above,  they  are  said  to  be  in  a  state  of  natural  society." 
Italics  are  Bentham's. 


THE   NATURE   OF  LAW  AND   RIGHTS  217 

fancy  of  the  writers;  on  the  devious  and  complex 
process  through  which  men  emerged  from  the  natural 
into  the  poHtical  state ;  and  on  the  survival  of  rights 
and  duties  from  the  earlier  in  the  later  condition :  — 
aU  these  were  banned  to  peremptory  worthlessness  by 
the  Benthamite  formula.  The  essence  of  a  state  was 
merely  a  habit  of  obedience.  Such  a  dogma  surely 
left  no  room  for  the  histoiy  or  the  mystery  which  played 
so  large  a  part  in  the  political  theory  of  the  conserva- 
tives and  the  reactionaries. 

Nor  was  Bentham's  criticism  less  sweepingly  de- 
structive when  directed  toward  the  conceptions  of 
law  and  rights  that  had  been  the  stronghold  of  much 
of  the  revolutionaiy  contention.  Subjects  who  sought 
to  throw  off  the  habit  of  obedience  so  far  as  concerned  a 
particular  sovereign,  could  never  cover  their  procedure 
with  a  legal  warrant.  To  allege  in  justification  of 
revolt  the  prescriptions  of  a  law  of  nature  and  a  body  of 
rights  and  duties  under  that  law,  seemed  to  Bentham 
but  quibbling  with  words.  So, vague  and  elusive  an 
entity  as  "nature"  he  could  never  tolerate  as  a  guide. 
Accordingly  he  set  forth  a  conception  and  definition  of 
law  and  rights  and  duties  that  effectually  eliminated 
that  confusing  element.  His  ideas  were  fundamentally 
those  that  had  been  formulated  by  a  no  less  acute 
English  intelligence,  Thomas  Hobbes,  two  centuries  j 
before ;  but  Bentham  carried  the  common  conceptions  I 
to  a  fruitful  development  and  derived  from  them  a  dis-  I 
tinction  between  politics  and  ethics  that  Hobbes  would  \ 
not  admit,  and  further  the  substnacture  of  a  science  of 
jurisprudence  in  which  Hobbes  had  little  or  no  interest. 


/• 


218  POLITICAL   THEORIES 

A  law,  in  Bentham's  thought;  is  the  expression  of  a 
will  in  the  form  of  a  command.^  In  a  political  society, 
that  is  law  which  is  enjoined  by  the  authority  which 
the  members  of  the  society  habitually  obey.  The 
making  of  laws  is  the  characteristic  function  of  this 
authority,  which  is  the  sovereign.  Because  law  is 
the  expression  of  a  will,  sovereignty  can  be  predicated 
only  of  a  being  of  which  will  can  be  predicated.  Nature 
or  reason  or  justice  cannot  be  the  supreme  power  iii  a 
state,  because  they  cannot  make  law ;  God  and  man  are 
the  only  forms  of  existence  possessing  will;  therefore 
law  in  any  precise  sense  must  emanate  from  one  of 
them.  Thus  divine  law  and  human  law  are  intelligible 
concepts ;  natural  law  and  the  law  of  reason  are  mean- 
ingless and  wholly  misleading.  But  divine  law  — • 
the  will  of  God  —  is  not  ascertainable  with  certainty ; 
some  human  will,  therefore,  must  in  every  instance  be 
the  abode  of  the  supreme  power  in  a  political 
society. 

How  far  the  supreme  power  extends,  and  w^hat  are 
the  rights  and  duties  of  the  individual  members  of  the 
society  in  respect  to  it,  are  questions  that  Bentham 
answers  by  the  application  of  his  utilitarian  philosophy. 
The  existence  and  the  location  of  sovereignty  are  a  mat- 
ter of  fact,  and  give  no  occasion  for  questions  of  right 
and  duty.  But  given  the  existence  of  a  sovereign,  is  the 
scope  of  his  power  without  bounds  ?  Can  he  legislate 
on  every  subject  and  to  every  effect  whatever  ?  Is  there 
no  line  beyond  which  his  prescripts  are  ipso  facto  void  ? 

*  Fragment,  chap,  iv,  see.  xi,  note.  Principles  oj  Morals  and 
Legislation,  at  end,  in  Works,  I,  p.  151. 


THE   SCOPE   OF  SOVEREIGNTY  219 

Bentham  can  see  none.  "The  supreme  governor's 
authority, "  he  says,  "though not  infinite; must  unavoid- 
ably,) I  think,  unless  where  limited  by  express  conven- 
tion, [be  allowed  to  be  indefinite."  ^  The  only  conceiv- 
able restraint  on  the  sovereign  is  his  own  judgment  as 
to  the  probability  of  effective  resistance  by  the  sub- 
jects. And  their  attitude  will  always  be  determined  in 
last  instance  by  the  calculation  of  their  interests  — 
by  their  comparison  of  the  evils  that  will  follow  resist- 
ance with  those  that  will  follow  obedience  to  the  ruler's 
commands. 

With  this  doctrine  and  its  exposition  and  corollaries 
Bentham  set  himself  in  direct  antagonism  to  the  pre- 
dominant philosophy  of  the  revolutionaiy  and  reform- 
ing parties  of  his  day,  with  whom  he  was  in  many  re- 
spects wholly  sympathetic.  Their  confidence  in  written 
constitutions  as  guarantees  of  rational  government, 
and  in  the  simplification  of  legislation  in  every  respect, 
he  shared  and  applauded.  But  bills  of  rights,  limita- 
tions upon  the  power  to  amend  the  constitution,  and 
all  other  devices  for  restricting  the  supreme  authority, 
he  regarded  as  unsound  in  theoiy  and  worthless  in 
practice.  They  rested  largely  for  justification,  he  said, 
upon  the  idea  that  the  distinction  between  free  and 
despotic  governments  depended  on  the  greater  or  less 
degree  of  power  possessed  by  the  supreme  authority  of 
the  state.  In  fact,  the  ultimate  sovereigns  in  all  states 
possess  precisely  the  same  unlimited  and  undefuied 
power.  Whether  any  particular  government  is  con- 
sidered free  or  despotic  depends  on  a  variety  of  cir- 

1  Fragment,  chap,  iv,  sec.  xxiii. 


220  POLITICAL   THEORIES 

cuinstances  connected  with  the  distribution  and  appli- 
cation of  this  power  in  its  exercise.^ 

For  the  common  declaration  in  constitutions  that  men 
have  by  nature  rights  that  the  sovereign  authority 
must  respect,  Bentham  felt  great  contempt.  That  it 
expresses  any  political  truth  or  imposes  any  real  barrier 
to  the  sweep  of  the  supreme  power,  he  demonstrates 
to  be  logically  and  actually  inconceivable.  His  analysis 
of  the  conception  of  rights  is  clear  and  conclusive  in 
this  connection.  A  right,  he  explains,  is  a  term  without 
meaning,  except  when  taken  in  connection  with  a  duty. 
The  two  concepts  are  inseparable  correlatives.  A  has 
a  right  only  in  so  far  as  B  and  C  and  the  rest  of  the 
alphabet  have  the  duty  of  leaving  him  free  to  act  in 
a  certain  way.  But  duty,  in  Bentham's  philosophy, 
has  no  basis  but  interest.  The  duty  of  B  and  C  to 
let  A  alone  —  to  respect  his  right  —  has  reality  only 
when  letting  him  alone  will  have  consequences  more 
agreeable  to  them  than  the  consequences  of  molesting 
him ;  or,  conversely  stated,  when  violation  of  his  right 
will  bring  greater  evil  upon  them  than  recognition  of  it. 
The  right  can,  therefore,  be  said  to  have  actual  existence 
only  when  the  evil  to  follow  its  violation  is  definite  and 
certain.  This  evil  is  the  sanction  of  the  right,  and 
where  the  right  is  established  by  a  law,  the  penalty 

1  For  example,  the  manner  in  which  the  supreme  power  is  dis- 
tributed among  the  persons  who  collectively  enjoy  it ;  the  degree 
of  ease  with  which  governors  and  governed  may  change  roles ; 
the  extent  to  which  the  governors  are  bound  to  give  reasons  for 
their  actions  to  the  governed ;  the  opportunities  for  complaint 
and  opposition  on  the  part  of  the  governed,  that  is,  the  liberty 
of  the  press  and  of  association.  —  Fragment,  chap,  iv,  seo. 
xxiv. 


RIGHTS  AND   DUTIES  221 

which  the  law  provides  is  the  guarantee  that  the  right 
is  real.^ 

Bentham's  assumptions  and  definitions  may  not  al- 
ways be  approved ;  his  doctrine  that  duty  has  no  basis 
but  self-interest  has  been  as  stoutly  assailed  in  the 
nineteenth  century  a.d.  as  the  same  doctrine  was 
assailed  in  Athens  in  the  fourth  century  B.C.  Never- 
theless, the  precision  of  his  thinking  confirmed  in 
political  theory  conceptions  and  distinctions  that  have 
been  of  the  utmost  value  in  the  clarification  of  the 
subject.  Blackstone  was  not  the  only  one  of  his  genera- 
tion to  make  a  logical  mess  of  it  when  discussing  rights 
and  duties.  The  whole  philosophy  of  the  revolution 
time  is  pervaded  with  unclearness  and  confusion  about 
them.  Bentham  let  into  the  situation  a  penetrating 
light. 

Djities,  he  said;  fall  into  three  categories,  according 
to  the  character  of  the  sanction  for  the  correlative  rights. 
A  political  duty  is  determined  by  the  penalty  which  a 
definitely  know^n  person,  namely,  a  political  superior, 
will  inflict  for  the  \aolation  of  certain  rights.  A  religious 
diityjs_detei'miiied  by  the  punishment  to  be  inflicted 
by  a  definitely  known  being,  namely,  the  Creator. 
The  third  species,  a  moral  duty,  depends  upon  cir- 
cumstances hardly  certain  and  definite  enough  to  be 
called  punishment,  yet  such  as  to  create  an  unpleasant 
state  of  mind  in  the  person  concerned,  by  putting  him 

^  Fragment,  chap,  v,  see.  vi,  note.  For  an  elaborate  attack  upon 
the  French  Declaration  of  Rights,  see  Bentham's  Anarchical 
Fallacies,  in  Works,  Vol.  II,  p.  487.  Sir  Leslie  Stephen's  analysis 
of  Bentham's  doctrine  is  particularly  just  and  illuminating.  —  The 
English  Utilitarians,  I,  289,  et  seq. 


222  POLITICAL  THEORIES 

in  disagreeable  relations  with  that  indefinite  body  of 
individuals  known  as  the  community  in  general.^ 

Taking  rights  in  the  same  classification,  Bentham 
contends  that  political  discussion  requires  the  nicest 
discrimination  in  the  uses  of  the  word.  A  legal  right 
is  a  clear  and  intelligible  expression.  It  means  al  faculty 
of  action  sanctioned  by  the  will  of  a  supreme  lawmaker 
in  a  political  society.  A  moral  right  is  a  clear  and  in- 
telligible expression,  though  less  free  from  ambiguity 
than  the  other.  Its  sanction  is  the  opinion  or  feeling 
of  a  group  of  persons  who  cannot  be  precisely  identified, 
but  who  nevertheless  are  able  to  make  their  collective 
or  average  wall  unmistakably  manifest.  A  natural 
right,  on  the  contrary,  is  an  ex-pression  that  has  neither 
definite  meaning  nor  any  form  of  usefulness.  Nature 
is  a  vague  and  midefinable  entity.  It  may  indeed  be 
used  as  sjmonymous  with  God,  in  which  sense  it  may 
serve  a  good  purpose.  In  any  other  sense,  however, 
it  denotes  sometliing  that  cannot  be  thought  of  as  en- 
dowed with  will,  and  is  therefore  incapable  of  making 
law  :  or  something  that  is  clothed  with  human  attributes 
only  by  most  obvious  metaphor,  and  is,  therefore,  to  be 
ignored  m  all  serious  discussion  of  rights  and  duties. 
Like  "law  of  nature,"  "natural  rights"  is  a  phrase 
that  can  contribute  only  confusion  in  a  rational  system 
of  political  science. 

These  definitions  and  distinctions,  applied  to  the 
ultimate  problems  of  political  theory,  give  these  con- 
clusions. As  against  the  supreme  power  in  a  political 
society  the  subjects  cannot  have  a  legal  right  of  resist- 

^  Fragment,  chap,  v,  esp.  sec.  vii,  note. 


THE   RIGHT   OF   RESISTANCE  223 

ance  or  revolt.  Their  legal  (or  as  Bentham  generally 
calls  it,  their  political)  duty  is  unconditional  obedience. 
A  moral  right  and  a  moral  duty  to  disobey  and  resist 
the  supreme  power  is,  on  the  other  hand,  the  conditional 
attribute  of  eveiy  subject. 

Looked  at  from  the  point  of  view  of  the  sovereign 
there  is  neither  legal  right  nor  legal  duty  in  respect  to 
the  subject.  Moral  rights  and  duties,  however,  are 
^cribable  to  the  sovereign,  first,  in  so  far  as  the  collec- 
tive opinion  of  the  sovereigns  of  the  world  —  the  so- 
called  law  of  nations  —  is  operative  as  a  norm  of  con- 
duct for  governments ;  and  second,  in  so  far  as  the  danger 
of  resistance^and  revolt  by  the  subjects  sets  a  real,  if 
indeterminate,  control  upon  governmental  procedure. 
Within  the  hazy  limits  imposed  by  these  restrictions 
the  hand  of  the  sovereign  is  free.  Its  policies  are  de- 
termined and  justified  in  last  instance,  not  by  their 
conformity  to  the  prescriptions  of  a  vague  and  con- 
jectural law  of  nature,  nor  by  the  obscure  terms  of  an 
imaginary  contract,  but  by  their  utility,  that  is,  by  their 
fitness  to  promote  the  greatest  happiness  of  the  greatest 
number  of  the  human  beings  affected  by  them. 

Bentham's  chief  interest  was  in  devising  systems  and 
methods  of  legislation  that  would  surely  conform  to  and 
serve  this  great  end.  His  services  to  ethical  and  juristic 
science  in  connection  with  this  work  were  of  the  utmost 
value.  With  sublime  confidence  in  the  infallibility 
^fjus  judgment  he  formulated  codes  of  international 
law,  of  constitutional  law,  of  c'i\dl  law,  of  criminal  law, 
which,  though  failing  of  adoption  l^y  the  denser-witted 
practical  statesmen  of  the  day,  embodied,  nevertheless, 


224  POLITICAL   THEORIES 

principles  and  suggestions  that  have  not  failed  of 
fruitfulness  in  later  generations.  His  distinctive  field 
was,  however,  that  of  ethics  and  jurisprudence  —  what 
may  be  called  the  realm  of  the  supra-political.  His 
distinctions  in  the  various  species  of  law  contributed 
decisively  to  the  elimination  of  ethical  and  juristic 
conceptions  from  the  domain  of  the  science  of  the  state. 
The  complete  separation  of  jurispiiidence  from  political 
science  he  did  not  work  out. ':  He  was  too  keenly  con- 
cerned in  various  phases  of  practical  reform  to  make  a 
perfect  job  of  his  theory.  The  necessary  advance  in 
this  direction  was  made  by  a  disciple  of  Bentham  — • 
a  less  original  and  less  picturesque,  but  hardly  a  less 
acute  intelligence,  John  Austin. 

3.  John  Austin 

The  distinctive  work  of  Austin  was  that  of  more 
exact  definition  and  more  scientific  arrangement  of 
Bentham's  principles  in  the  field  of  jurisprudence. 
So  far  as  this  task  touched  upon  political  science  the 
contribution  of  Austin  is  to  be  found  in  his  well-known, 
if  little  read,  lectures  on  ''The  Province  of  Jurispru- 
dence Defined."^  In  these  he  seeks  to  mark  out 
with  the  utmost  possible  precision  the  respective  do- 
mains of  law  and  ethics.  Only  by  way  of  incident 
does  he  present  noteworthy  conceptions  in  the  field 
that  belongs  properly  to  politics.  His  method  is 
wholly  a  priori  and  he  proceeds,  like  Bentham,  entirely 

*  Under  this  title  are  included  the  first  six  lectures  of  the  general 
course  on  Jurisprudence  that  makes  up  the  great  part  of  the  two 
volumes  of  his  published  work.  The  six  lectures  are  in  Vol.  1, 
pp.  81-351. 


JURISPRUDENCE   DEFINED  225 

by  definition  and  deduction.  Part  at  least  of  the  im- 
provement that  is  made  on  the  master  is  due  to  the 
system  and  methods  of  the  German  jurists,  whom 
Austin  studied  with  care  when  preparing  his  work. 
Bentham  somewhat  ostentatiously  despised  the  Ger- 
mans. 

The  thesis  to  which  Austin  devotes  his  first  interest 
is  that  jurisprudence  as  a  science  must  be  limited  to 
the  field  of  what  he  calls  "positive  law."  His  defini- 
tion of  law  is  substantially  Bentham 's :  an  expression 
of  will  by  a  detenninate  being  that  a  certain  course  of 
conduct  come  to  pass,  failing  which,  an  evil  will  come 
upon  one  who  deviates  from  that  course.  Of  law  as 
thus  conceived  there  can  be  but  two  species,  divine 
and  human ;  natural  law  is  an  ambiguous  and  mislead- 
ing term,  having  definite  comiotation  only  when  regarded 
as  a  kind  of  divine  law.  Human  law  falls  into  two 
classes  :  fii'st,  miles  that  are  imposed  by  political  supe- 
riors in  independent  societies,  to  use  the  phraseology  of 
Austin,  or  in  other  terms,  rules  that  are  laid  down  by 
the  sovereign  in  a  state ;  second,  rules  set  by  men  who 
are  not  political  superiors,  as,  for  example,  by  one 
sovereign  to  another  or  by  parent  to  child.  In  this 
second  class  fall  also  those  iiiles  which  are  set  merely 
by  the  opinion  of  an  indeterminate  body  of  men,  such 
as  the  laws  of  fashion,  the  laws  of  honor,  and  very  much 
of  the  mass  of  customs,  understandmgs  and  conventions 
that  are  commonly  referred  to  as  constitutional  and 
international  law.  This  whole  class  receives  from 
Austin  the  designation  "positive  morality,"  while 
"positive  law "  is  restricted  to  the  rules  that  emanate 


226  POLITICAL  THEORIES 

from  the  will  of  the  sovereign.  It  is  this  latter 
species  alone  that  in  Austin's  view  should  constitute, 
as  I  have  said,  the  subject  matter  of  the  science  of 
jurisprudence. 

While  we  are  not  concerned  with  the  fate  of  Austin's 
juristic  doctrines,  we  may  observe  in  passing  that  they 
failed  to  evoke  enthusiastic  approval  from  the  class  of 
thinkers  for  whom  they  were  particularly  devised. 
That  was  due,  not  to  any  lack  of  force  and  cogency  in 
their  presentation,  but  largely  to  the  shock  and  repul- 
sion which  they  produced  in  the  circles  of  the  old- 
fashioned  and  respectable  jurisprudence.  The  adepts 
of  the  ancient  system  stood  aghast  to  see  Austin  take 
the  most  venerated  principles  of  the  constitution  and  the 
law  of  nations,  bundle  them  up  with  such  low-bred 
imperatives  as  the  laws  of  fashion  and  honor,  deny  them 
even  the  name  of  law,  and  mark  them  with  the  new- 
fangled and  unintelligible  label,  "positive  morality." 
Even  at  the  present  day  staid  and  world-famed  members 
of  the  Hague  Tribunal  will  fidget  at  the  bare  men- 
tion of  Austin,  because  by  his  classification  their  per- 
sonal judgments  about  international  relations  are 
morality  but  not  law. 

Having  developed  his  conception  of  positive  law  as 
the  subject  of  jurisprudence,  Austin  sought  to  be  equally 
explicit  as  to  the  source  of  this  law.  This  brought  him 
^^,  to  his  doctrine  of  sovereignty,  which  is  his  most  in- 
y"^  fluential  contribution  to  political  theory  proper.  Like 
Bentham,  and  in  terms  obviously  suggested  by  the  Ben- 
thamese  formula,  Austin  defines  sovereign  and  state 
(or,  as  he  calls  it,  "independent  political  society") 


THE   AUSTINIAN  SOVEREIGN  227 

in  a  single  sentence.    The  classic  and  familiar  definition 
is  this:  ,-.•.*> 

If  a  determinate  human  superior,  not  in  a  habit  of  obedi-    /        <^ 
ence  to  a  like  superior,  receive  habitual  obedience  from  the    /  \k/j^ 

bulk  of  a  given  society,  that  determinate  superior  is  sovereign   1  ^^-^^''^^^ 
in  that  society,  and  the  society  (including  the  superior)  is  a  / 
society  political  and  independent.'^  ^^ 

There  is  prima  facie  an  air  of  the  utmost  scientific 
precision  and  finality  in  this  sentence.  Austin  him- 
self made  no  claim  of  exaggerated  efl&cacy  for  it  in 
solving  all  the  problems  of  politics.  He  was  confident 
only  that  it  was  well  adapted  to  the  promotion  of  exact- 
ness in  the  field  of  jurispiTidence.  He  pointed  out  that 
the  words  "habitual"  and  "bulk"  are  not  terms  of 
mathematical  precision,  but  leave  room  for  a  large 
margin  of  uncertainty,  so  that  his  formula  will  not  surely 
give  an  answer  to  the  question  as  to  whether  a  given 
society  is  to  be  classed  as  an  independent  political 
society.^  But  where  the  answer  is  clearly  affirmative, 
the  sovereign  as  defined  must  be  regarded  as  the  source 
of  all  the  legal  rules  to  which  obedience  is  habitually 
given.  So  far  as  these  rules  are  in  the  form  of  statutes, 
they  are  obviously  the  expression  of  the  sovereign  will. 
So  far  as  they  are  contained  in  the  judgments  of  the 
courts,  they  must  be  regarded  as  emanating  from  the 
sovereign  through  his  judicial  agent.  So  far  as  they 
are  mere  custom,  they  are  willed  by  the  sovereign  in 
that  he  permits  them  to  prevail,  because  what  he  per- 

*  Jurisprudence,  Vol.  I,  p.  226.  The  development  and  defense 
of  this  definition  constitute  the  subject  matter  of  the  whole  of 
lecture  vi,  pp.  224-348. 

*  See  the  careful  explanations  on  this  point  in  Jurisprudence, 
Vol.  I,  pp.  233  et  seq. 


228  POLITICAL  THEORIES 

mits  he  commands,  and  they  are  ipso  facto  superseded 
the  instant  the  sovereign  will  to  that  effect  —  that  is, 
a  positive  law  —  is  promulgated. 

Austin's  sovereign,  thus,  is  absolute  —  above  every 
restriction  by  law,  free  from  all  connection  with  legal 
rights  and  duties.  Yet  the  Austinian  conception  gives 
no  such  effect  of  the  overwhelming  as  the  characteriza- 
tion of  sovereignty  which  Blackstone,  improving  on 
Bolingbroke,  put  into  his  commentaries:  "However 
they  [the  various  forms  of  government]  began,  or  by 
what  right  soever  they  subsist,  there  is  and  must  be  in 
all  of  them  a  supreme,  irresistible,  absolute,  uncon- 
trolled authority,  in  which  the  jura  summi  imperii, 
or  the  rights  of  sovereignty,  reside."^  This  impressive 
aggregate  of  English  adjectives,  "topped  off,"  as  Ben- 
tham  says,  with  "a  piece  of  formidable  Latinity," 
gives  the  idea  that  unlimited  power  is  the  necessary 
attribute  of  every  state  —  that  the  conception  of  re- 
striction in  any  respect,  by  any  force  or  influence  what- 
ever, is  incompatible  with  the  conception  of  sovereignty. 
Such  an  interpretation  of  Blackstone's  has  been  often 
carried  over  into  the  interpretation  of  Austin's  defini- 
tion, and  the  blending  of  the  two  has  been  responsible 
for  much  of  the  criticism  of  the  Austinian  doctrine.^ 
That  the  sovereign  must  be  in  every  state  determinate, 
was  unquestionably  of  the  essence  of  Austin's  definition. 
Adding  to  this  the  requirement  that  the  sovereign 
must  have  power  without  limit  in  scope  and  vigor,  the 
problem  was  presented  of  discovering  in  every  state, 

'  Commentaries,  I,  46.     Cf.  supra,  p.  74. 

2  Cf.  Henry  Sumner  Maine,  Early  History  of  Institutions,  leot.  xii. 


THE   AUSTINIAN   SOVEREIGN  229 

as  an  indispensable  condition  of  its  being  a  state,  a 
definite,  countable  or  othei-wise  identifiable  man  or 
group  of  men,  whose  effective  will  was  in  last  analysis 
the  cause  of  all  political  phenomena.  The  effort  to 
detect  a  sovereign  of  this  awe-mspiring  sort  in  such  a 
political  society  as  the  United  States,  for  instance,  was 
naturally  exhaustmg  and  unfruitful,  and  Austm  has 
been  made  to  bear  the  reproach  of  authorship  of  a  worth- 
less doctrine  and  theory  of  the  state. 

In  reality  Austin's  sovereign,  by  the  terms  of  the  defini- 
tion, was  supreme  only  in  respect  to  positive  law.  Aus- 
tin never  denied  that  other  forces  than  positive  law 
were  operative  in  social  life.  He  was  not  blind  to  the 
influence  of  custom,  of  habit,  of  what  is  called  constitu- 
tional law  and  international  law;  but  he  denied  to 
them  the  character  of  law  and  held  merely  that  so  far 
as  social  life  was  considered  as  determined  by  the  will 
of  a  definite  superior,  there  must  be  an  end  to  the  gra- 
dation of  such  superiors  —  a  discoverable  being  whose 
will  there  was  none  above  to  overrule.  To  one  who 
seeks  the  source  of  law  and  finds  one  will  after  another, 
in  the  hierarchy  of  governmental  organs,  superseded  by 
a  superior,  the  one  which  is  not  and  cannot  be  super- 
seded is  the  sovereign.  Only  in  the  legal,  not  at  all  in 
the  moral  or  physical,  sense  could  Blackstone's  quartette 
of  stirring  adjectives  be  properly  applied ;  only  as  maker 
of  positive  law  is  the  sovereign  supreme,  irresistible, 
absolute,  uncontrolled.^ 

1  See  Austin's  explanation  of  his  two  classes  of  states,  monarchy 
and  aristocracy,  I,  244,  note:  "The  habitual  independence  which 
is  one  of  the  essentials  of  sovereignty,  is  merely  habitual  indepen- 
dence of  laws  imperative  and  proper.     By  laws  which  opinion. 


230  POLITICAL  THEORIES 

Austin,  like  Bentham,  is  at  some  pains  to  explain 
the  application  of  theii'  theoiy  to  the  case  of  federal 
governments.  In  the  Fragment  Bentham,  as  we  have 
seen,  lays  it  down  that  the  authority  of  the  sovereign 
is  without  definite  bounds  "unless  where  limited  by  ex- 
press convention."  ^  This  qualification  he  considers 
necessary  in  order  to  include  the  German,  Swiss  and 
Dutch  systems  of  his  day  in  the  category  of  political 
societies.  In  such  systems,  he  points  out,  the  habit 
and  disposition  of  obedience,  which  is  the  basis  of  sov- 
ereign power,  may  be  present  as  to  one  kind  of  acts 
and  absent  as  to  another.  Hence  the  governing  person 
or  persons  may  be  supreme  as  to  one  kind  of  acts  and 
not  as  to  another,  provided  that  the  latter  sort  "be 
in  its  description  distinguishable  from  every  other." 
If  an  act  in  the  field  exempted  by  the  convention  is  a 
clear  and  definite  indication  that  the  moment  for  re- 
sistance to  the  government  has  arrived,  the  limitation 
on  the  sovereign  is  manifest.  Bentham's  whole  treat- 
ment of  this  point  turns  on  the  assumption  that  the 
partition  set  up  against  the  intrusion  of  the  government 
can  be  made  perfectly  distinct.  He  allows  nothing 
for  the  possibilities  of  interpretation  and  construction. 
He  thinks  in  the  line  of  divided  sovereignty,  or  sov- 
ereignty in  spheres,  that  brought  such  bitter  experience 
to  the  United  States. 

Austin,  on  the  other  hand,  stands  rigidly  on  the  dogma 
that  sovereignty  is  indivisible.^     A  group  of  pplitical 

imposes,  every  member  of  every  society  is  habitually  determined." 
See  also  the  discussion  of  "  the  limits  of  sovereign  power,"  I,  270. 

1  Cf.  supra,  p.  219. 

2  Op.  ciL,  I,  264,  et  seq. 


THE   COMPOSITE   STATE  231 

societies  associated  under  some  form  of  governmental 
union  iwill_  always  prove  on  close  inspection  to  fall 
into  one  of  the  two  classes,  a  composite  state,  or  a 
confederacy  of  states.  The  distinction  is  that  in  the 
composite  state  there  may  be  detected  a  body  possess- 
ing in  respect  to  the  whole  group  the  attributes  of 
sovereignty  in  the  strictest  sense ;  while  in  the  confed- 
eracy sovereignty  in  the  strict  sense  inheres  in  each 
member  of  the  union.  The  United  States  is  the 
only  example  given  of  the  composite  state,  and  Austin's 
solution  of  the  problem  of  the  location  of  sovereignty 
in  the  American  system  perfectly  illustrates  his  theory. 
The  solution  is  this  : 

.  .  .  the  sovereignty  of  each  of  the  states,  and  also  of  the 
larger  state  arising  from  the  federal  union,  resides  in  the 
states'  governments  as  forming  one  aggregate  body :  mean- 
ing by  a  state's  government,  not  its  ordinary  legislature, 
but  the  body  of  its  citizens  which  appoints  its  ordinary 
legislature,  and  which,  the  union  apart,  is  properly  sovereign 
therein.^ 

This  solution  well  illustrates  at  once  the  acuteness  of 
Austin's  perception  and  the  precision  of  his  intellectual 
processes.  He  penetrates  to  the  innermost  recesses 
of  the  American  constitutional  system,  with  all  its 
complexity,  and  brings  to  view  the  supreme  legislator 
that  his  philosophy  requires.  Whether  his  analysis 
gives  adequate  weight  to  all  the  facts  of  the  situation, 
is  a  question  that  has  excited  violent  debate.  Cer- 
tainly those  critics  of  Austin  have  ground  for  complaint 
who  ask  whether  it  is  useful  to  hold  that  so  incoherent 
a  body  as  he  refers  to  can  properly  be  called  "determi- 
»  Op.  at.,  I,  268. 


232  POLITICAL  THEORIES 

nate,"  or  that  "  habitual  obedience  "  scientifically  char- 
acterizes the  relation  of  a  people  to  a  supreme  governor 
that  formally  enunciates  its  will  only  twice  in  a  century. 
For  the  sovereign  enacts  positive  law  only  by  way  of 
constitutional  amendment,  and  no  amendment  was  in 
fact  made  in  the  Constitution  of  the  United  States 
between  1803  and  1865;  or  again  between  1870  and  1913. 
The  far-reaching  development  of  political  institutions 
during  those  intervals  can  be  ascribed  to  the  will  of 
the  Austinian  sovereign  only  by  recourse  to  the  con- 
venient; if  often  overloaded  principle,  that  what  is 
permitted  is  commanded. 

The  character  of  Austin's  philosophy  in  this  respect 
is  well  revealed  by  his  views  on  liberty.^  Political  or 
civil  liberty  he  defhies  to  be  the  freedom  of  action  left 
or  granted  by  a  sovereign  government  to  its  own  sub- 
jects. So  far  as  concerns  law  in  the  proper  sense,  the 
sovereign  is  under  no  restriction  as  to  widening  or 
narrowing  the  bounds  of  liberty.  Yet  restrictions  of 
an  extra-legal  kind  may  be,  and  in  fact  always  are, 
operative  in  determining  these  bounds.  (The  customs, 
habits  and  traditions  of  a  people,  the  understandings 
and  agreements  that  make  up  their  domestic  constitu- 
tion and  their  foreign  relations,  and  the  principle  of 
utility  itself,  demanding  the  ascertainment  and  enforce- 
ment of  that  which  is  for  the  maximum  happiness  — 
all  play  a  part  in  defining  the  limits  within  which 
liberty  is  prescribed  by  law.[ 

Austin  has  no  patience  with  the  enthusiasm  that 
exaggerates  the  role  of  liberty  in  the  scheme  of  poHtics. 

*  Jurisprudence,  I,  281. 


AUSTIN   ON   LIBERTY  233 

He  is  very  severe  in  his  comment  on  "the  ignorant  and 
bawling  fanatics,"  as  he  sweetly  calls  them,  "who  stun 
j'-ou  with  their  pother  about  liberty,"  and  consider  it 
the  principal  end  for  which  government  ought  to  exist. 
In  his  opinion  "pohtical  or  civil  liberty  is  not  more 
worthy  of  eulogy  than  political  or  legal  restraint." 
Whether  the  one  or  the  other  is  the  more  serviceable 
in  promoting  the  end  for  which  all  government  exists, 
is  the  criterion  of  preference. 

This  end  is,  in  Austin's  as  in  Bentham's  opinion, 
the  greatest  possible  advancement  of  human  happiness. 
The  quantitative  measurement  of  happiness  is  based 
in  the  approved  Benthamite  manner  upon  elementary- 
arithmetic.  The  aggregate  happiness  of  mankind  is 
the  mere  sum  of  the  aggregates  of  happiness  found  in 
the  various  societies  into  which  mankind  is  divided; 
and  the  happiness  of  each  of  these  groups  is  the  arith- 
metical sum  of  the  quantities  of  happiness  attaching 
to  the  individuals  constituting  the  groupj  The  dif- 
ficulties in  the  way  of  any  mathematical  reckoning  of 
human  satisfactions  were  fully  appreciated  by  the 
utilitarians,  but  they  were  ready  with  the  claim  that 
their  method  of  calculus  was  no  more  vulnerable  than 
any  other  and  was  decidedly  simpler. 

On  one  point  of  ever-growing  importance  Austin  was 
emphatic  with  more  than  his  usual  ponderosity :  the 
criterion  of  utility  must  be  the  maximum  welfare,  not 
ofaparticular  comjnunity  at  the  expense  of  the  rest, 
but  of  all  mankind.  The  patriotism  that  would  dis- 
regard the  interests  and  welfare  of  all  but  a  single  na- 
tion he  stigmatizes  as  stupid  and  atrocious.    Equally 

I     ■  f->  .  ■■  ...^  ,   ' 


234  POLITICAL  THEORIES 

repugnant  to  sound  philosophy,  he  maintains,  is  any 
theory  that  a  single  element  of  happiness,  as  for  ex- 
ample property,  is  the  paramount  object  of  the  sov- 
ereign's interest.  On  this  ground  he  runs  atilt  with  the 
economists  of  his  day,  who  tended  to  regard  the  state 
as  primarily,  if  not  exclusively,  an  institution  for  pro- 
moting the  accumulation  of  wealth. 

Finally,  we  may  note  that  Austin,  in  the  manner  of 
his  sect,  took  especial  pains  to  repudiate  the  most 
cherished  dogmas  of  the  continental  and  advanced 
English  radicals  as  to  natural  rights  and  the  social  con- 
tract. He  paid  his  compliments  also  to  the  popular 
doctrine  that  government  depends  for  existence  and  for 
action  on  the  consent  of  the  governed.  This  is  true, 
he  said,  dnly  as  a  statement  that  the  governed,  for 
some  reason  or  another,  habitually  obey  the  sovereign ; 
it  is  not  true  in  the  sense  that  the  bulk  of  the  community 
prefer  the  existing  form  to  every  other  form  of  govern- 
ment, and  that  if  they  did  not,  they  could,  without  in- 
convenience, overthrow  the  existing.  So  far  as  men  are 
controlled  by  reason  the  fundamental  ground  for  the 
existence  of  a  given  government  is  that  of  its  utility ; 
that  is,  the  subjects  either  are  satisfied  that  it  is  pro- 
moting their  welfare  as  well  as  possible,  or  are  convinced 
that  a  change  would  on  the  whole  produce  more  evils 
than  it  would  remedy.  Only  highly  developed  and  en- 
lightened men,  however,  are  controlled  by  reason  in  a 
thorough  way.  In  undeveloped  and  unenlightened  com- 
munities the  grounds  for  the  existence  of  a  particular 
government  are  to  be  found  in  imreflecting  custom  or  in 
irrational  but  immovable  sentiment  or  prejudice. 


THE   ENGLISH   UTILITARIANS  235  ^ 

4.   John  Stuart  Mill   '^^'^"      <J 

f  James  Mill  was  born  in  1773 ;  John  Stuart  Mill,  | 
his  son,  died  in  1873.  The  century  covered  by  these 
two  Uves  fixes  very  fairly  the  chronological  bounds 
within  which  the  Benthamite  utilitarianism  rose, 
flourished  and  passed  away  by  absorption  into  later  [ 
I  philosophic  growths.  James  Mill  was  the  disciple  and 
intimate  friend  of  Bentham  in  the  post-Napoleonic 
days  when  the  dogmas  of  the  aged  philosopher  were  at 
the  height  of  their  fame  and  influence.  The  younger 
Mill  received  during  those  days  the  abiding  impressions 
of  a  precocious  youth,  from  not  only  his  conscientious 
father,  but  also  his  not  less  positive  tutor,  John  Austin. 
The  practical  politics  of  Great  Britain  during  the 
twenties,  thirties  and  forties  of  the  nineteenth  century 
involved  on  the  domestic  side  the  fiercely  fought  battles 
for  Parliamentaiy,  administrative  and  economic  re- 
forms, and  on  the  foreign  side  the  problems  of  effective 
sympathy  with  the  movements  for  constitutional  gov- 
ernment on  the  Contment.  It  was  a  stirring  epoch,  and 
a  philosopher  who  could  present  a  rational  theory  of 
pontics  never  lacked  an  audience  or  a  subject.  The 
elder  Mill  formulated  in  1820  the  utilitarian  theory  of 
government^  in  rigid  conformity  to  Bentham's  dogma. 
Forty  years  later  the  more  talented  son  set  forth  a  theory 
which,  while  faithful  in  most  fmidamentals  to  the  dogma 
of  the  father,  disclosed  nevertheless  in  many  features  of 
the  development  a  pliability  that  tells  of  the  passing  of 
the  original  Benthamism. 

^  See  his  Essays  on  Government,  etc.,  esp,  the  first  essay. 


^ 


i 


236  POLITICAL   THEORIES 

The  systematic  expression  of  John  Stuart  Mill's 
political  theory  is  to  be  found  in  his  work  On  Liberty 
and  that  on  Representative  Government.  When  these 
were  pubhshed,  in  1859  and  1861  respectively,  Mill 
had  achieved  great  distinction  as  a  philosopher  and  was, 
through  his  famous  Political  Economy,  one  of  the  most 
influential  thinkers  of  the  time.  On  all  the  chief  ques- 
tions of  public  interest  and  debate  his  vigorous  pen  had 
been  busy,  and  his  general  political  doctrme  had  thus 
been  pretty  fully  revealed.  The  function  of  the  two 
essays  referred  to  was  to  throw  into  coherent  and  prop- 
erly correlated  form  conceptions  that  had  as  yet  lacked 
this  manner  of  presentation. 

Mill's  political  theory  knew  nothing  of  "the  state" 
under  that  name.  "Society"  was  the  term  by  w^hich 
men  in  their  ultimate  collective  aspect  were  habitually 
designated,  and  "government"  named  indiscriminately 
the  genus  and  the  chief  species  of  political  institutions. 
This  use  of  terms  meant  something.  It  pointed  back- 
ward to  the  philosophical  systems  of  the  eighteenth- 
century  physiocrats  and  economists,  and  to  the  just 
completed  work  of  Auguste  Comte  wherein  the  founda- 
tions of  sociology  were  well  laid.  At  the  same  time  it 
looked  foi-ward  to  the  long  debate  in  which  the  state, 
as  a  distinct  concept  of  political  science,  was  to  be 
pushed  by  German  theoiy  to  a  position  of  preeminence 
over  society,  government  and  the  indi\ddual  as  well. 

Mill,  true  to  his  utilitarian  training,  holds  that  gov- 
emmerit  is  made  by  men  for  their  social  well-being. 
Human  will  and  purpose  always  are  operative  in  the 
life   of  poHtical   institutions.    Though   other  factors 


WHAT   IS  SOCIAL  WELI^ BEING?  237 

enter  into  the  problem,  a  government  functions  at  any 
particular  time  only  so  far  as  the  people  whom  it  con- 
trols are  willing  to  accept  it,  and  are  able,  as  well  as 
willing,  to  do  what  is  necessary  to  keep  it  going  and  ful- 
filling its  end.  "Social  well-being,"  the  end  of  govern- 
ment, Mill  thinks  of  as  meaning  the  possession  of  desir- 
able qualities  by  a  number  of  concrete  human  beings, 
not  the  perfect  adjustment  of  the  abstract  relationships 
which  make  these  men  a  society.  Hence  the  fostering 
gfsuch  qualities  —  summed  up  as  vii-tue  and  intelligence 
— ^is  the  first  criterion  of  good  government.  Only 
second  in  importance  is  the  character  of  the  machinery 
itself,  —  the  degree  in  which  it  is  adapted  to  make  the 
best  use  of  such  qualities  as  the  individuals  possess.^ 

Mill  is  not  uniformly  successful  in  avoiding  recogni- 
tion of  anjrthing  in  a  social  group  beyond  what  is  in  the 
individuals  composing  it.  His  nommalism  is  less  rigid 
than  that  of  his  father.  More  or  less,  perhaps,  mider 
the  influence  of  Comte's  spirit,  he  often  ascribes  to  a 
community  attributes  that  cannot  be  readily  predicated 
of  a  mere  sum  of  human  beings.  But  Comte's  famous 
criteria  of  the  happy  society,  "order  and  progress," 
Mill  flatly  rejects.  He  objects  to  the  terms  on  various 
acutely  distinguished  metaphysical  grounds,  but  seems 
most  influenced  in  rejecting  them  by  their  failure  to 
involve  adequate  stress  on  the  qualities  of  the  concrete 
human  beings  who  make  up  a  society.  These  qualities 
must,  as  stated  above,  be  the  first  consideration  in  any 
estimate  of  the  social  well-being.  What  must  be  the 
fimdamental  condition  in  the  relation  between  the  gov- 

*  Representative  Government,  chap.  ii. 


4 


238  POLITICAL  THEORIES 

ernment  and  the  individuals  over  whom  it  exercises 
authority,  is  set  forth  by  Mill  in  his  celebrated  essay 
On  Liberty. 

The  thesis  of  this  essay  is : 

.  .  .  that  the  sole  end  for  which  mankind  are  warranted, 
individually  or  collectively,  in  interfering  with  the  freedom 
^of  action  of  any  of  their  number,  is  self -protection  7—  that 
the  only  purpose  for  which  power  can  be  rightfully  exercised 
over  any  member  of  a  civilized  community,  against  his  will, 
is  to  prevent  harm  to  others.  His  own  good,  either  physical 
or  moral,  is  not  a  sufficient  warrant.     [Chap,  i.] 

So  far  as  his  actions  concern  the  interests  of  no  person 
but  himself,  "advice,  instruction,  persuasion,  and 
avoidance  by  other  people  if  thought  necessary  by  them 
for  their  own  good,  are  the  only  measures  by  which 
society  can  justifiably  express  its  dislike  or  disapproba- 
tion of  his  conduct." 

Mill's  development  of  this  doctrine,  on  the  basis  of 
utility,  broadly  conceived,  as  the  standard  of  right, 
embodies  a  complete  and  symmetrical  philosophy  of 
individualism  and  laissez  faire.  Freedom  of  thought 
and  expression  he  defends  with  Miltonian  fervor  and 
more  than  Milton's  acumen.^  Individuality  as  an  ele- 
ment of  well-being  he  sustains  with  the  reasoning  that 
William  von  Humboldt  had  developed  from  different 
premises,^  and  he  proclaims  with  the  German  that  the 
repression  of  originality  in  thought  and  conduct, 
whether  by  law  or  by  public  opinion,  is  the  essence  of 
despotism  and  is  fatal  to  the  progress  of  the  race.  Mill 
manifests  the  intellectual  man's  apprehension  of  the 

^  Political  Theories  from  Luther  to  Montesquieu,  p.  244. 
•  Supra,  p.  149. 


THE   BEST  GOVERNMENT  239 

tendency  of  the  growing  democracy.    When  individual- 
ity is  repressed  by  the  law  of  a  monarch  or  an  aris- 
tocracy, the  evil  of  it  may  be  comiteracted  by  the  cus- 
tom of  the  masses ;  but  when  the  masses  make  the  law 
of  repression,  custom  unites  with  legislation  to  confipm  '\ 
the  evil.    Mill  sums  up  effectively  all  the  claims  to    i 
exemption  from  governmental  interference  that  were   / 
to  be  found  in  the  social  and  economic  conditions  of  I 
the  middle  of  the  nineteenth  century. '  These  condi-  1 
tions,  especially  as  exemplified  in  Great  Britain,  were    \ 
evidently  the  chief  inspiration  of  his  philosophy.    When  / 
he  proceeded  to  discuss  the  form  of  government  thatj     -^z 
would  best  apply  the  basic  principles  of  liberty  as  he\  -nf 
conceived  them,  it  was  likewise  to  his  own  land  that  he  \ 
went  for  his  chief  inspiration.  j 

Ideally  the  best  form  of  government  Mill  held  to  be 
that  in  which  "the  sovereignty,  or  supreme  controlling 
power  in  the  last  resort,  is  vested  in  the  entire  aggregate 
of  the  community,"  every  citizen  not  only  having  a 
voice  in  the  expression  of  the  sovereign  will,  but  also, 
at  least  occasionally,  an  actual  part  in  the  discharge  of 
some  public  function.  The  excellence  of  such  a  form 
of  government  was  deduced  from  two  principles  :  first, 
that  any  task  is  done  best  by  those  whose  rights  and  in- 
terests are  immediately  involved ;  and  second,  that  the 
faculties  of  men  —  moral,  intellectual  and  practical  — 
are  most  developed  and  improved  when  they  are  in 
active  exercise.^ 

This  form  of  government  is  no  novelty  in  the  specu- 
lations of  political  theory.     It  is  the  ideal  of  a  host  of 

'  Representative  Government,  chap.  iii. 


\ 


240  POLITICAL  THEORIES 

thinkers  since,  and  including,  Aristotle.  It  is  indeed  a 
form  of  state  rather  than  of  government,  though  Mill 
ignores  such  a  distinction.  He  names  it  "representa- 
tive government,"  and  makes  it  conform  strictly  to 
its  name  by  ascribing  to  it  as  its  essential  characteristic 
this: 

.  .  .  that  the  whole  people,  or  some  numerous  portion  of 
them,  exercise,  through  deputies  periodically  elected  by 
themselves,  the  ultimate  controlling  power,  which,  in  every 
constitution,  must  reside  somewhere.  This  ultimate  power 
they  must  possess  in  all  its  completeness.  They  must  be 
masters,  whenever  they  please,  of  all  the  operations  of 
government.^ 

Mill  thus  commits  himself  to  the  dogma  of  a  deter- 
minate and  absolute  human  sovereign  combining  the 
peculiarly  ill-assorted  thoughts  of  Austin  and  Black- 
stone.  There  will  always  be,  he  says,  a  single  deposi- 
tary of  ultimate  power,  whether  by  constitutional 
prescription  or  by  unwTitten  custom.^  In  this  position 
Mill  separates  himself  from  the  French  liberals  like 
Guizot,  who  insisted  that  absolute  power  in  any  human 
depositary^,  even  "society"  or  the  "people,"  was  in- 
compatible with  rational  liberty,  and  that  "the  prin- 
ciple of  the  representative  system  is  the  destruction  of 
all  sovereignty  of  permanent  right,  that  is  to  say,  of 
all  absolute  power  upon  earth."  ^ 

Mni's  obvious  interest,  however,  is  not  at  all  the  ab- 
stract foundations  of  political  life,  but  the  concrete 

'  Representative  Government,  chap.  v. 

2  Note  his  phrase  "  the  positive  political  morality  of  the  country" 
—  one  of  the  rare  instances  in  which  Austin's  terminology  is  adopted 
by  a  later  ^vriter. 

'  Guizot,  Representative  Government,  Course  II,  lecture  18. 


THE   REPRESENTATIVE   BODY  241 

institutions  in  which  it  is  manifested.  Hence  it  is  his 
discussion  of  various  questions  relating  to  the  consti- 
tution and  action  of  the  representative  body  that  gives 
chief  significance  to  his  work.  The  British  Parhament  ' 
is  always  in  his  mind  as  the  typical  instance  of  such 
bodies,  and  the  current  propositions  for  reform  of  that 
Parhament  may  be  detected  at  every  turn  in  his  thought. 

The  proper  functions  of  the  representative  body  as  he 
describes  them  are  very  much  like  those  assigned  by 
Aiistotle  to  the  ecclesia  in  the  city  state,  that  is,  not 
administration  or  even  legislation,  but  ^  general  scru- 
tiny and  censorship  over  the  officers  on  whom  the  re- 
sponsibility for  these  functions  immediately  falls.  The 
parliament  should  watch  and  control  the  government, 
insure  the  publicity  of  its  acts,  compel  their  justifica- 
tion, and,  when  the  men  constituting  the  government 
contravene  "the  deliberate  sense  of  the  nation,"  expel 
them  from  office  and  "either  expressly  or  virtually 
appoint  their  successors."^ 

That  this  system  of  government  has  its  weaknesses, 
Mill  freely  admits.  The  most  dangerous  of  them  he  y 
thinks  is  the  exposure  to  the  unjust  domination  of  the 
numerical  majority.  An  inevitable  tendency  of  popu- 
lar government  toward  "collective  mediocrity"  en- 
hances the  peril  from  this  source,  so  that  power  gravi- 
tates surely  toward  the  less  uitelligent  classes  of  th^^^ 
people.  To  counteract  this  MiQ  believes  that  recourse 
must  be  had  to  a  system  of  proportional  representation 
through  which  a  minority  of  the  electors  may  secure  . 
a  number  of  members  corresponding  to  their  numerical     * 

'  Representative  Government,  chap.  v. 
B 


242  POLITICAL  THEORIES 

strength.  Thus  the  evils  of  extending  the  suffrage 
would  be  minimized,  and  the  instructed  minority  would 
have  a  share  in  the  government  that  would  make  always 
for  progress.  Under  such  a  system  the  able  man  would 
be  sure  of  coming  to  the  position  where  his  ability  would 
tell  for  the  common  good,  instead  of  remaining  sub- 
merged beneath  the  surge  of  the  mediocre  and  worse.^ 

Other  doctrines  of  Mill  touching  the  suffrage  con- 
firm the  very  qualified  character  of  his  radicalism.  The 
right  to  vote  should  be  extended  to  women^  but  should 
always  be  limited;  regardless  of  sex,  to  those  whose 
attainments  in  culture  should  have  reached  through 
reading  and  writing  and  the  rule  of  three.  Plural 
voting  should  assure  a  proportionate  weight  to  the 
superior  intelligence.  Finally,  voting  should  be  public, 
not  secret,  save  when  some  peculiar  circumstance  dic- 
tates the  contrary.  The  secret  vote,  he  argues,  creates 
and  strengthens  the  idea  that  the  suffrage  is  a  personal 
right  rather  than  a  public  tmst  — •  that  it  may  be  used 
for  the  voter's  own  interest  rather  than  with  a  primary 
view  to  the  public  interest.  "If  it  is  a  right,"  Mill 
asks,  "if  it  belongs  to  the  voter  for  his  own  sake,  on 
what  ground  can  we  blame  him  for  selling  it,  or  using 
it  to  reconmiend  himself  to  anyone  whom  it  is  his 
interest  to  please?"^ 

Such  questions  and  discussions  illustrate  the  prac- 
tical bearing  of  Mill's  theoiy  in  this  later  stage.  The 
Reform  Act  of  1867  was  already  in  debate  and  it  fur- 
nished the  basis  of  his  argument.  On  the  practical 
issues  of  the  times  he  was  a  liberal  rather  than  a  radical. 

^Representative  Government,  chap.  vii.  ^Ibid.,  chap.  x. 


THE   HISTORICAL  METHOD  243 

His  speculative  doctrine  remained  immovably,  how- 
ever, that  of  his  early  training.  Truth  and  righteous- 
ness in  society  and  government  were  discoverable 
only  through  the  process  of  logical  deduction  from  the 
utilitarian  dogmas  as  to  the  nature  and  end  of  man. 
That  the  history  and  conscious  experience  of  the  race 
might  embody  some  aspects  of  political  truth  that  es- 
caped the  sweep  of  the  Benthamite  system,  was  a 
proposition  that  made  no  appeal  to  Mill.  •  Before  his 
death,  however,  Darwin's  epoch-making  treatise  was 
producing  a  great  transformation  in  the  manner  of  men's 
thinking ;  Herbert  Spencer  and  Henry  Simmer  Maine 
had  announced  their  first  discoveries  of  profound  social 
and  legal  truth  in  the  lives  of  the  most  primitive  peoples  ; 
Freeman  and  Stubbs  were  inspiring  the  search  for  the 
origins  of  English  liberty  among  the  institutions  of  the 
Anglo-Saxons ;  the  historical  method  began  to  dominate 
the  whole  intellectual  attitude  of  both  British  and  Con- 
tinental thinkers;  and  with  these  developments  the 
whole  utilitarian  system  went  into  eclipse.  '  For  a 
generation  after  Mill's  death  the  primary  interest  of 
political  philosophy  was  to  explain  political  institutions 
not  in  their  being  but  in  their  becoming. 

5.  Conclusion 

Whether  we  do  or  do  not  approve  of  utilitarianism 
as  an  ethical  system,  we  get  a  sense  of  refreshment  on 
turning  from  the  political  theory  of  the  American 
and  French  revolutionary  school  to  that  of  Bentham 
and  Austin.  There  is  an  impression,  initially  at  least, 
of  contact  with  concrete  realities  instead  of  remote 


244  POLITICAL  THEORIES 

or  intangible  abstractions.  Thus  the  state  of  nature, 
the  law  of  nature,  the  social  contract  —  all  seem,  when 
presented  to  view  by  the  revolutionary  theorists,  his- 
torically far-distant  and  dim,  or  logically  beyond  the 
ready  reach  of  the  average  mind.  But  when  Bentham 
says  that  the  social  contract  is  a  myth,  that  the  law  of 
nature  is  merely  a  state  of  mind  on  the  part  of  the 
person  who  speaks  of  it,  and  that  the  state  of  nature  is 
nothing  more  occult  or  remote  than  the  condition  of  a 
group  of  persons  in  the  habit  of  conversing  with  one  an- 
other, the  entrance  to  political  science  seems  open  to  all. 
The  purpose  to  give  simplicity  and  precision  to  polit- 
ical terms  was  always  strongly  present  in  Bentham  and 
Austin,  and  their  success  was  notable  —  perhaps  too 
great.  Compare  their  definitions  with  the  pale,  elusive, 
unsubstantial  concepts  which  the  German  idealists 
evoked  from  the  metaphysical  deeps  and  clothed  with 
the  names  and  attributes  of  state  and  society  and  sov- 
ereignty and  government.  Hegel,  for  example,  defined, 
or  described,  the  state  as  "  the  realization  of  the  social- 
ethical  idea — ^the  social-ethical  spirit  as  the  revealed 
self-perceived  substantial  will  that  thinks  and  knows 
itself."  Such  a  collection  of  words,  if  it  meant  anything 
to  anybody,  certainly  meant  nothing  to  the  average 
man,  and  served  only  to  involve  political  ideas  in  confu- 
sion and  mystery.  Any  such  result  it  was  the  particular 
function  of  the  utilitarians  always  to  resist.  To  Fichte, 
following  Rousseau,  the  essence  of  the  state  was  will ; 
to  others  it  was  personality ;  to  others  it  was  organism ; 
to  others  it  was  a  sacred,  inscrutable  effluence  of  God. 
What  hardihood  was  required  of  him  who  sought  an 


THE   ENGLISH   UTILITARIANS  245 

intimate  knowledge  of  things  political,  the  mere  enu- 
meration of  these  conceptions  makes  comprehensible. 

Then  come  Bentham  and  his  utilitarians  with  the 
frank  assurance  that  the  essence  of  the  state  is  merely 
a  habit  —  the  habit  of  obedience.  A  political  society, 
they  say,  is  nothing  more  or  less  than  a  group  of  living 
human  beings,  actuated  by  motives  that  are  familiar 
in  the  experience  of  everybody.  Its  actions  are  de- 
termined, not  by  agreements  or  compacts  made  by 
past  generations  or  conceived  to  have  been  made  un- 
consciously by  the  present,  but,  like  all  other  human 
actions,  by  the  consideration  of  the  pleasure  and  pain, 
the  happiness  and  woe,  of  living  individuals.  All 
institutions,  traditions,  customs  and  ceremonies,  of 
whatever  antiquity,  dignity  or  good  repute,  are  worse 
than  useless  unless  they  promote  directly  and  immedi- 
ately the  greatest  happiness  of  the  greatest  number  of 
men.  When  in  the  place  of  the  abstractions,  fancies 
and  mysteries  of  the  idealists  and  the  obscurantists, 
these  simple  and  winning  propositions  are  presented, 
the  inevitable  reaction  from  the  hearer  is  that  of  ap- 
proval and  acceptance. 

Historically  the  Benthamite  and  Austinian  theory 
fills  a  large  place  in  political  philosophy.  It  has  passed, 
however,  the  high  tide  of  its  influence.  Its  ethical 
formula  has  proved  practically  no  more  fruitful  than 
others,  and  distinctly  less  available  as  against  the  cyn- 
ical ;  for  there  has  become  inseparably  connected  with 
the  lofty  phrase,  the  greatest  good  of  the  greatest  num- 
ber, the  scoffer's  supplement :  "and  the  greatest  number 
is  number  one."    Its  dogmas  as  to  law  and  sovereignty 


246  POLITICAL  THEORIES 

have  contributed  very  much  to  the  clarification  of  a 
complex  situation.  Yet  it  is  impossible  for  any  but 
the  strongest  intellects  today  to  stem  the  current  of 
usage  that  deliberately  includes  under  the  name  law 
many  social  imperatives  other  than  the  will  of  a  polit- 
ical superior.  The  Austinian  sovereignty  has  lost  the 
plenitude  of  its  power.  As  announced  by  its  discov- 
erer, it  was  the  determinate  human  superior  to  which 
habitual  obedience  was  given  in  eveiy  community 
worthy  of  the  name  of  independent  political  society. 
For  half  a  centuiy  the  most  acute  speculators  in  things 
political  sought  with  meticulous  diligence  to  isolate  and 
put  on  view  such  a  sovereign  in  each  of  the  leading  states 
of  the  world.  Outside  of  Great  Britain,  with  its  omnip- 
otent Parliament,  the  search  was  generally  in  vain, 
f  So  the  Austinian  sovereignty  was  ignominiously  deco- 
I  rated  with  a  commonplace  adjective,  and  as  "legal" 
I  sovereignty  became  the  partner,  if  not  the  inferior,  of 
I  a  newly  discovered  entity,  the  "political"  sovereign.^ 
Finally,  the  utilitarian  theoiy  of  the  state  failed  of  a 
sure  grip  on  the  thinking  world  through  the  intensity 
of  what  the  medievals  would  have  called  its  nominalism. 
This  was  a  defect  of  its  most  significant  quality.  In  the 
hatred  of  vagueness  and  abstractions  Bentham  and  Aus- 
tin rejected  eveiy thing  that  failed  of  the  most  literal 
participation  in  the  life  of  a  human  individual.  The 
happiness  which  was  the  goal  of  their  philosophy 
must  be  reckoned  not  in  any  terms  of  generahty; 
it  must  be  the  mathematical  sum  of  the  emotions  ex- 

1  Dicey,  Law  of  the  Constitution,  pp.  66  et  seq.     Ritchie,  Darwin 
and  Hegel,  p.  238. 


AN   INCOMPLETE   SYSTEM  247 

perienced  by  a  definite  number  of  actual  men.  Sov- 
ereignty must  inhere  in  a  determinate  man  or  group  of 
men,  that  is,  in  case  of  a  group,  a  number  of  individuals 
every  one  of  whom  could  be  separately  identified  and 
every  one  of  whom  exercised  a  will  in  such  a  way  that 
the  algebraic  sum  of  their  wills  would  be  the  will  of  the 
sovereign,  or  law.  Political  society  itself,  or  the  state, 
must  be  thought  of  only  as  an  aggregate  of  individuals. 
And  the  attributes  of  this  aggregate  could  be  nothing 
but  the  totality  of  the  attributes  of  the  individuals. 

It  is  easy  to  understand  how  useful  such  ideas  were 
in  correcting  tlie  vagueness  and  mysticism  of  Burke  and 
Hegel  and  Maistre ;  but  it  is  no  less  easy  to  understand 
how  incomplete  the  system  was  which  refused  to 
recognize  that  a  social  group  of  men  possesses  attributes 
distinct  from  those  of  its  component^members  and  lives 
a  life  that  is  other  than  theirs,  j  Though  group  psy- 
chology is  full  of  pitfalls  for  the  unwary,  a  theory  of  the 
state  that  ignores  it  is  an  inadequate  thing.  Bentham 
and  Austin  and  Mill  in  fact  never  reached  a  theory  of  the 
state.  The  limit  of  their  political  science  was,  in  terms 
of  a  distinction  that  also  was  ignored  or  unnoticed  by 
them^a  theory  not  of  the  state,  but  of  government. 

SELECT  REFERENCES 

Austin,  Jurisprudence,  lect.  vi.  Bentham,  Fragment  on  Gov- 
ernment, especially  chaps,  i,  iv,  v ;  "Anarchical  Fallacies,"  in  Works, 
Vol.  IL  Dicey,  Law  of  the  Constitution,  pp.  64—79.  Lewis,  Use 
and  Abuse  of  Political  Terms,  sees,  iv,  v,  xii.  Maine,  Early  History 
of  Institutions,  lects.  xii,  xiii.  Mill,  James,  Essays  on  Govern- 
ment, etc.,  pp.  3-32.  Mill,  John  Stuart,  On  Liberty,  chaps, 
iii,  iv;  Representative  Government,  chaps,  iii,  v.  Ritchie,  Darwin 
and  Hegel,  pp.  227-264.  Stephen,  The  English  Utihtarians, 
Vol.  I,  pp.  130-136, 307  et  seq. ;  Vol.  II,  pp.  71-97 ;  Vol.  Ill,  chap.  iv. 


CHAPTER  VII 

THEORIES   OF  CONSTITUTIONAL  GOVERNMENT 

1.   The  Struggle  for  Constitutions  on  the  Continent 

While  Great  Britain  worked  out  in  comparative 
calm  the  adaptation  of  her  poHtical  system  to  the  needs 
of  the  nineteenth  century,  progress  in  the  same  direc- 
tion in  the  rest  of  Europe  was  attended  with  a  long 
series  of  convulsions.  From  the  fall  of  Napoleon's 
empire  for  full  two-thirds  of  a  century  agitation  was 
continuous  and  wars  were  not  infrequent  for  the  realiza- 
tion on  the  Continent  of  political  ideas  that  had  been 
made  prominent  by  the  French  Revolution.  Until 
the  middle  of  the  century  the  history  of  the  period  is 
punctuated  with  insurrections ;  after  1850,  the  type  of 
disturbance  changes  to  international  war. 

Insurrection  made  its  first  imposing  appearance  in  the 
early  twenties,  when  the  Carbonari  and  the  Free  Masons 
rose  in  Italy  and  Spain  respectively,  and  temporarily 
converted  Bourbon  despotisms  into  a  semblance  of 
constitutional  governments.  At  the  same  time  Portu- 
gal went  through  a  similar  experience,  and  the  Greeks 
won  the  interest  and  sympathy  of  Christendom  by 
thro  whig  off  the  yoke  of  the  Sultan. 

Before  the  widespread  ferment  attending  these  move- 
ments had  subsided  a  more  terrifying  shock  was  given 
to  conservatism  by  the  reappearance  of  revolution  in 
France.    In  July,  1830,  the  Bourbon  Charles  X  was 

248 


AN  ERA  OF   INSURRECTION  249 

driven  from  the  throne  and  the  Orleanist  Louis  Philippe 
was  put  in  his  place.  All  Europe  was  filled  with  unrest 
and  alarm  lest  these  events  should  be  the  prelude  to 
such  developments  as  had  followed  the  uprising  against 
the  brother  of  Charles  in  1789.  Only  at  two  widely 
separated  centers,  however,  were  there  serious  conse- 
quences. Poland  rose  agamst  the  Czar  and  was  ruth- 
lessly crushed  back  into  subjection ;  the  Belgians  broke 
away  from  the  connection  with  the  Dutch  that  had  been 
arranged  by  the  great  powers  at  Vienna,  and  were 
assisted  by  these  same  powers  to  set  up  an  independent 
neutralized  monarchy. 

After  the  turmoil  of  these  affairs  there  was  a  fretful 
interval  of  peace.  Then  came  the  most  violent  of  all 
the  LQSurrectionary  convulsions,  that  of  1848.  France 
was  again  the  first  to  set  up  the  standard  of  revolt, 
and  she  was  easily  first  in  the  unexpectedness  of  the 
outcome.  None  would  have  predicted  when  the  in- 
surrection began  that  the  French  government  was 
about  to  pass  from  constitutional  monarchy  to  repub- 
lic and  from  that,  within  four  years,  to  a  second  Napo- 
leonic empire.  Central  Europe  on  this  occasion  fur- 
nished tumults  that  in  fervor  and  complexity  fairly 
rivalled  those  in  France.  All  the  German  and  all  the 
Italian  peoples  were  aflame  with  political  passion.  Ber- 
lin and  Vienna  and  Rome  were  the  scenes  of  bloody 
conflicts.  At  Frankfort  a  famous  assembly  of  Germans 
labored  long  but  futilely  on  the  project  of  uniting  Ger- 
many under  a  constitutional  government.  At  Buda- 
Pesth  a  short-lived  independence  of  the  Hapsburger 
cheered  the  hopes  and  stimulated  the  florid  eloquence 


'p 


250  POLITICAL  THEORIES 

of  the  Magyars.  On  every  side  it  seemed  as  if  the  old 
order  was  finally  destroyed.  But  when  after  two 
tempestuous  years  the  tumult  ceased,  the  Hapsburger 
and  the  Hohenzollern  ruled  their  dominions  and  their 
neighbors  as  before,  and  on  the  face  of  things  Central 
and  Southern  Europe  showed  little  change. 

Beneath  the  surface,  however,  a  transformation  had 
been  effected  that  was  readily  perceived  when  trouble 
again  appeared  among  the  nations.  Not  internal  but 
international  confhcts  assumed  the  chief  place  in 
European  politics,  and  the  projects  of  the  warring 
powers  were  in  an  ever-increasing  measure  determined 
by  considerations  of  national  growth  and  consciousness. 
The  operation  of  this  influence  is  not  hard  to  discern 
in  the  Crimean  War  and  in  the  Italian  War  of  1859 ; 
in  the  great  Bismarckian  conflicts  of  1866  and  1870  the 
consolidation  of  German  national  unity  was  the  avowed 
end  and  the  most  efficient  instrument  of  the  triumphant 
Prussian  policy.  Nor  was  the  notion  of  nationality 
lacking  to  the  Russo-Turkish  War  of  1877-78;  for 
Serb  and  Bulgar  received  through  this  war  the  birth- 
right of  substantial  independence. 

Looked  at  from  the  point  of  view  of  political  philoso- 
phy, the  sixty-five  years  (1815-1880)  of  strenuous  state- 
craft just  surveyed  shows  three  bodies  of  doctrine 
occupying  successively  the  chief  place  in  the  current 

\       speculation.     The  first  was  constitutionalism,   which 

dominated  thought  till  the  middle  of  the  century.     The 

second  was  nationalism,  which  reached  the  climax  of 

2^      its  sway  over  men's  minds  in  the  sixties.     The  third  was 

^    socialism,  which  was  on  the  high  road  to  universal 


CONSTITUTIONS  ACHIEVED  251 

absorption  of  philosophy  when  the  period  closed.    It_^ 
is  the  purpose  of  the  present  chapter  to  set  forth  the 
saKent  features  of  the  doctrines  that  accompanied  the 
spread  of  constitutional  government  throughout  West- J 
ern  and  Central  Europe. 

Despite  the  strong  reactionary  and  obscurantist 
influence  manifested  in  the  Holy  Alliance,  the  govern- 
ments actually  organized  in  the  states  whose  monarchs 
were  restored  by  the  Congress  of  Vienna,  furnished 
abundant  evidence  that  the  ideas  of  the  revolution  had 
not  lost  all  their  force.  Especially  conspicuous  was 
the  idea  that  some  kind  of  constitution  —  of  funda- 
mental law,  written  or  unwritten  —  was  of  the  essence 
of  a  rational  and  workable  system.  Various  practical 
conditions^  confirmed  the  old  tendency  to  regard  a 
formal  written  document  as  in  the  only  full  and  precise 
sense  a  constitution.  Hence  the  demand  for  some  such 
well-defined  legal  basis  for  the  government,  whether 
monarchic,  aristocratic  or  democratic,  became  the 
central  feature  in  the  program  of  the  Liberal  party  in 
every  state.  Concession  to  this  demand  went  steadily 
on  among  the  princes  of  the  Continent,  strongly  resisted 
only  by  Austria,  Russia  and  Prussia.  After  the  crisis 
of  1848  the  HohenzoUern  and  later  the  Hapsburger 
gave  way,  and  by  1880  practically  every  Christian  state 
of  the  Continent  save  Russia  was  governed  under  a 
written  constitution. 

^  Among  them  the  fact  that  where  French  dominion,  after  long 
sway,  was  destroyed  and  a  sweeping  reorganization  was  necessary, 
the  restored  princes  were  almost  compelled  to  formulate  the  prin- 
ciples that  were  to  characterize  their  government,  in  order  to  save 
their  subjects  from  hopeless  confusion  and  anarchy. 


252  POLITICAL   THEORIES 

During  the  agitations  and  conflicts  that  attended  the 
progress  to  this  end,  theoretical  debate  developed  new 
and  striking  doctrines  only  as  to  the  content,  not  as  to 
the  desirability  of  the  written  code.  There  was  the 
greatest  diversity  among  the  actual  constitutions  as 
to  the  organization  and  action  of  the  governments. 
In  every  state  there  was  continuous  strife  between 
parties  devoted  to  the  application  of  liberal  and  con- 
servative interpretations  respectively  to  the  fundamen- 
tal laW;  or  to  the  expansion  of  it  in  the  sense  of  their 
interests.  As  to  the  essential  requirements  of  constitu- 
tional government,  theory  was  practically  unanimous 
in  holding  that  there  must  be  some  guarantee  of  rights 
to  the  individual  and  some  reciprocal  check  and  balance 
among  the  legislative,  executive  and  judicial  powers. 
It  was  further  held  by  all  but  the  ultra-conservatives 
that  rational  government  required  the  participation 
of  some  form  of  deliberative  assembly,  representing  in 
some  w^ay  the  body  of  the  population.  All  these  re- 
quirements had  been  understood  and  met  in  France  in 
1789  and  the  following  years,  but  the  swift  progress  of 
those  years  into  anarchy  remained  a  potent  warning 
to  the  Liberals  of  the  next  generation  and  interposed 
a  barrier  for  decades  against  every  suggestion  of  re- 
publicanism. Hence  the  chief  problem  of  those  who 
speculated  on  the  theory  of  constitutional  government 
was  to  find  a  safe  and  useful  niche  in  the  system  for  the 
monarch. 

Thus  until  after  1848  the  theories  of  the  constitutional 
state,  Rechtsstaat,  as  the  Germans  called  it,  were  largely 
concerned  with  the  effort  to  reconcile  the  functions  of  a 


PROBLEMS   OF   CONSTITUTIONALISM  253 

representative  assembly  with  those  of  a  hereditary 
monarch,  to  insure  the  hberty  of  the  subject  individual 
against  the  historical  and  traditional  omnipotence  of 
the  reigning  indiAddual,  and  to  partition  sovereignty 
neatly  between  the  pnnce  and  the  people  or  banish 
the  troublesome  concept  from  the  ken  of  philosophy. 

2.    Types  of  the  Realized  Constitutions 

The  concrete  provisions  of  the  constitutions  on  cer- 
tain fundamental  points  furnish  a  clear  revelation  of  the 
theory  that  was  prevalent.  What  is  contained  in  the 
codes  themselves  as  to  the  origin  of  their  prescriptions 
and  the  power  to  modify  them,  as  to  the  relation  of  the 
constitution  to  ordinary  legislation,  as  to  the  part  of 
the  prince  in  the  making  and  the  execution  of  laws  — 
constitutes  the  most  useful  path  of  approach  to  the 
speculative  doctrines  of  the  time. 

France  led  off,  as  we  have  seen,  in  the  promulga- 
tion of  a  Charte  Constitutionelle  by  Louis  XVIII  at  his  T-- 
restoration  in  1814.  So  far  as  this  document  itself 
furnished  evidence,  the  authority  on  which  it  was  based 
was  the  will  of  the  monarch.  To  withdraw  it  or  to 
make  changes  in  it  of  any  kind  whatever,  seemed  equally 
in  his  discretion.  He  was,  finally,  the  definitive 
interpreter  of  its  provisions  in  any  doubt  as  to  their 
meaning  or  operation.  Under  this  last  principle 
the  clause  giving  the  king  the  ordinance  power  was  con- 
strued by  Charles  X,  in  1830,  as  a  warrant  for  royal 
decrees  setting  aside  certain  statutes  and  contravening 
the  Charter  itself.  The  result  was  the  revolution  that 
put  Louis  Philippe  on  the  throne.    A  revision  of  the 


254  POLITICAL  THEORIES 

Charter  was  effected  in  connection  with  this  event,  and 
the  phraseology  of  the  instrument,  Hke  the  proceedings 
by  which  the  revolution  was  effected,  disposed  finally 
of  the  idea  that  the  will  of  the  monarch  was  the  basis 
of  the  constitution,  and  gave  most  support  to  the  doc- 
trine that  the  fundamental  law  rested  upon  a  compact 
I  ^  ^  between  the  king  and  the  elected  representatives  of  the 
people.  To  this  system  pertain  those  famous  specimens 
of  GalHc  phrase-making — "A  throne  surrounded  by 
repubHcan  institutions"  and  "The  king  reigns  but  he 
does  not  govern."  The  constitution  was  no  more  suc- 
cessful than  these  ingenious  party  formulas  in  giving 
precision  to  the  royal  function.  The  politics  of  the 
July  monarchy  turned  always  on  the  critical  ques- 
tion whether  the  superior  power  in  the  state  should 
gravitate  to  the  king  or  to  the  elected  representatives 
of  the  people. 

In  many  of  the  lesser  states  of  Europe  the  course  of 
events  was  much  like  that  in  France.  Few  princes, 
however,  had  as  much  success  as  Louis  XVIII  in  impos- 
ing on  their  subjects  constitutions  of  exclusively  royal 
origin.  In  most  cases  the  fundamental  law  took  shape 
as  the  result  of  a  formal  agreement  between  monarch 
and  estates-general,  and  was  treated  by  all  parties  as 
beyond  amendment  save  by  consent  of  all  who  were 
concerned  in  its  establishment.  As  the  old  estates- 
general  was  superseded  in  the  new  constitution  by  the 
bicameral  legislature,  this  organ  became  the  coordinate 
factor  with  the  monarch  in  the  guardianship  of  the 
supreme  law.  Formal  modifications  of  the  constitution 
required  the  joint  action  of  parliament  and  crown ;  but 


POWER   OF   THE   MONARCH  255 

a  strong  and  resolute  prince  rarely  failed  to  impress 
upon  the  established  system,  by  interpretation  and 
administrative  practice,  the  principles  that  favored  his 
own  particular  policies.  The  written  constitutions  of 
the  nineteenth  century  proved  little  more  effective  than 
the  unwritten  law  and  custom  of  England  in  the  seven- 
teenth for  the  speedy  and  final  elimination  of  the  royal 
prerogative  from  the  high  places  of  authority. 

A  particularly  good  illustration  of  this  is  to  be  found 
in  the  early  history  of  Prussia  under  the  constitution  of 
1850.^  This  instrument,  formulated  by  royal  authority 
in  agreement  with  representative  bodies,  was  promul- 
gated by  Frederick  William  IV  as  fundamental  law 
for  the  state.  It  embodied  guarantees  of  individual 
rights  on  a  generous  scale,  and  it  assigned  an  important 
part  in  legislation  to  a  chamber  that  was  in  some 
measure  representative  of  the  people.  Both  the  terms 
of  the  constitution,  however,  and  the  interpretation 
that  was  at  once  adopted  in  practice  maintained  for 
the  monarch  a  scope  of  authority  that  left  no  room  for 
the  intrusion  of  democracy,  or  for  the  transformation 
of  the  government  from  the  royal  to  the  parhamentary 
type.  The  principle  of  separation  of  powers,  with 
check  and  balance  in  the  interest  of  popular  liberty, 
received  no  recognition.  To  the  king  was  ascribed  the 
whole  executive  power,  the  controlling  influence  in 
the  legislative  power,  and,  moreover,  the  broad  author- 
ity to  issue  ordinances  for  the  execution  of  the  laws. 

In  general  the  government  in  Prussia  under  the 

*  English  translation  by  Professor  J.  H.  Robinson  in  Annals  of  the 
American  Academy  of  Political  and  Social  Science,  Vol.  V,  Supplement. 


P. 


256  POLITICAL  THEORIES 

constitution  continued  to  be,  as  before,  a  government 
by  the  king,  subject  only  to  the  new  condition  that  in 
matters  of  lawmaking  he  would  act  in  conjunction  with 
the  chambers.  How  little  this  restriction  meant  when 
a  critical  issue  arose  was  revealed  in  1862  when  Bismarck 
became  the  khig's  chief  minister.  It  was  explicitly 
laid  down  in  the  constitution  that  the  revenues  and  ex- 
penditures of  the  state  should  be  determined  annually 
by  the  budget,  which  must  be  voted  as  law.^  For  four 
years,  however,  during  which  the  chambers  would  not 
agree  on  any  budget,  the  government  administered  the 
finances  according  to  its  unrestricted  will.  Certain 
grounds  fo^"  this  action  were  found  in  the  constitution, 
though  Bismarck  afterwards  admitted  that  they  were 
without  serious  value.  What  really  enabled  him  to 
carry  through  his  policy  against  the  violent  opposition 
of  the  Liberal  party  was  the  steadfast  assertion  of  the 
doctrine  that  the  responsibility  for  the  conduct  of  the 
government  in  Prussia  was  in  last  analysis  in  the  kin^, 
and  that  he  must  do  his  duty,  in  conformity  with  the 
constitution  if  possible,  otherwise  without  reference 
to  it.2 

1  Article  100  of  the  constitution  ran  as  follows : "  "  Taxes  and 
contributions  to  the  public  treasury  shall  be  collected  only  insofar 
as  they  shall  have  been  included  in  the  budget,  or  authorized  by 
special  laws." 

^  The  technical  question  was,  what  should  be  done  when  the  two 
houses  could  not  agree  on  a  measure  indispensable  to  the  existence  of 
the  government.  The  upper  house  of  the  legislature  was  controlled 
by  the  ministry,  and  could  thus  readily  be  made  the  means  for 
effecting  a  disagreement  with  the  more  popular  chamber.  Bis- 
marck, having  created  this  situation,  took  the  high  ground  that  the 
king  must  save  the  state  from  the  anarchy  threatened  by  the 
failure  of  the  chambers  to  perform  their  duty. 


THE    MONARCH   MAKES    LAW  257 

In  addition  to  this  dogma  of  the  general  residuary 
power  in  the  king  the  monarchic  principle  was  sustained 
in  Prussia  and  elsewhere  by  a  special  theory  of  the 
nature  of  law  and  legislation  that  was  developed  by  the 
jurists  of  the  public  law.  The  common  assumption 
that  the  participation  of  the  chambers  in  legislation 
impKed  that  their  function  in  the  matter  was  equal  or 
superior  in  importance  to  that  of  the  prince  was  de- 
clared to  be  erroneous.  A  dual  process  is  involved,  so 
the  argument  ran,  in  what  is  commonly  spoken  of  as 
law-making.  First  the  content  of  an  act  of  will  is 
determined;  second,  the  will  is  expressed  in  the  form 
of  a  command.  In  only  the  first  process  do  the  cham- 
bers take  part.  They  aid  by  their  deliberations  in 
fixing  the  content  of  the  future  law.  But  when  their 
proceedings  are  entirely  completed,  the  result  is  by  no 
means  law.  It  still  lacks  the  essential  element  —  the 
command  that  subjects  conform  to  the  indicated  rule 
or  be  punished.  This  final  and  decisive  element  it  is 
the  function  of  the  king  exclusively  to  supply,  through 
the  performance  of  his  duty  to  promulgate  the  laws. 
Only  through  this  royal  act  is  law  technically  "made." 
So  long  as  this  ultimate  act  remains  the  function  of  the 
monarch,  it  is  idle  to  speak  of  sovereignty  as  resting 
anywhere  but  in  him.^ 

Closely  associated  with  this  support  of  the  monarch- 
ical principle  was  the  distinction  carefully  worked  out 
between  statute  and  ordinance.   So  far  as  the  prince  was 

1  For  a  clear  exposition  of  this  doctrine,  which  was  long  conspicu- 
ous in  continental  public  law,  see  Jellinek,  Geseiz  und  Verordnung, 
p.  312  et  seq. 


258  POLITICAL  THEORIES 

formally  vested  with  the  executive  power,  his  right  to 
issue  commands  that  were  incidental  to  the  execution 
of  the  laws  was  conceded  in  all  constitutions...  But  in 
practice  the  administration  of  public  business  in  every 
governmental  system  required  frequent  acts  of  authority 
that  could  not  be  thought  of  as  related  to  any  specific 
expression  of  legislative  mil.  Where  constitution  or 
statute  set  definite  boimds  to  such  acts,  the  ordinance 
power  ceased ;  but  wdthin  this  limit  there  was  room  for 
the  assertion  of  a  degree  of  power  that  gave  great  sup- 
port to  the  theory  of  monarchy. '  Charles  X  of  France 
lost  his  throne,  as  has  been  stated,  through  an  attempt 
so  to  extend  the  ordinance  power  reserved  to  him  by 
the  constitution  as  to  justify  the  contravention  of  con- 
stitution and  law.  In  the  amended  constitution  under 
which  Louis  Philippe  assumed  the  crown  it  was  specif- 
ically provided  that  the  power  to  issue  ordinances 
should  not  extend  to  suspending  the  laws  or  dispensing 
with  their  execution.  This  principle  was  incorporated 
in  the  widely  influential  Belgian  constitution  of  1830, 
through  which  it  was  ultimately  passed  on  into  the 
public  law  of  many  German  states.^ 

All  the  forms  of  doctiine  devised  for  the  support 
of  the  monarchic  principle  were  animated  by  a  purpose 
to  assail  at  one  point  or  another  the  dogma  of  the 
separation  of  powers.  This  dogma  was  the  stronghold 
of  popular  sovereignty.  Not  by  logical  necessity,  but 
by  revolutionary  history  and  tradition,  Montesquieu's 
famous  classification  and  distribution  of  the  fmictions 
of  government  had  become  the  distinctive  attribute  of 

*  Jellinek,  Gesetz  und  Verordnung,  p.  99. 


THE   SEPARATION  OF  POWERS  259 

liberal  constitutionalism.  A  king  thus  was  held  to  be, 
like  the  legislative  chambers  and  the  courts,  one  of  the 
three  agencies  for  carrying  into  effect  the  will  of  the 
sovereign  people.  Against  this  idea  the  conservative 
lawyers  invoked,  as  we  have  just  seen,  the  testimony  of 
both  history  and  the  working  of  the  constitutions  them- 
selves. Speculative  philosophy  came  also  to  the  front 
in  the  same  cause  with  criticism  that  played  havoc 
with  the  very  foundations  of  the  whole  doctrine.  It 
was  declared  to  be  incomplete  and  otherwise  defective 
in  its  analysis  of  the  functions  of  government,  and 
confused  in  its  distribution  of  functions  among  the  vari- 
ous organs.  The  upshot  of  all  the  criticism,  however, 
tended  to  be  the  demonstration  that  the  chief  practical 
weakness  of  the  doctrine  was  the  failure  to  make  per- 
fectly clear  the  necessity  of  the  monarchic  element. 
An  ingenious  effort  to  reformulate  the  familiar  theory 
and  make  it  serviceable  alike  for  liberals  and  for  mon- 
archists was  the  leading  feature  of  a  philosophy  that 
had  some  vogue  in  France  at  the  time  of  the  Bourbon  , 
restoration. 

3.   Benjamin  Constant:  His  Theory  of  the  Royal  Power 

Benjamin  Constant,  1767-1830,  was  one  of  the  most 
influential  writers  of  the  French  Liberal  school  in  the 
last  two  decades  of  his  life.  The  basis  of  his  doctrines 
was  the  sovereignty  of  the  people.  This  he  developed, 
however,  rather  in  the  general  spirit  of  Montesquieu 
than  in  the  spirit  of  Rousseau.  He  contra  verted  force- 
fully the  dogma  of  an  absolute  sovereignty  anywhere. 
Neither  in  any  individual  nor  in  any  class  nor  in  society 


260  POLITICAL  THEORIES 

as  a  whole,  he  held,  could  there  be  a  right  to  the  un- 
qualified exercise  of  its  will.  Like  Locke  and  Montes- 
quieu, he  would  recognize  no  authority  on  earth  as 
without  limits  —  "neither  that  of  the  people  nor  that 
of  the  men  who  claim  to  be  its  representatives  nor 
that  of  kings,  by  whatever  title  they  reign,  nor  that  of 
law.  .  .  ."1 

Constant's  sympathy  with  the  spirit  of  the  English 
system  led  him  to  the  formulation  of  a  somewhat  novel 
and  striking  doctrine  as  to  the  royal  power.  His  idea 
was  obviously  derived  from  the  working  of  the  British 
constitution  in  his  own  day  as  distinguished  from  the 
operation  of  it  which  had  been  responsible  for  Montes- 
quieu's view.  According  to  Constant,  the  three  powers 
enumerated  by  Montesquieu  and  recognized  in  most 
written  constitutions  were  not  exhaustive  of  the  func- 
tions of  normal  government.  From  the  experience  of 
France,  in  particular,  he  concluded  that  even  in  repub- 
lican government  the  old  analysis  was  inadequate, 
while  for  constitutional  monarchy  there  were  discernible 
five  species  of  power,  each  of  which  should  be  properly 
vested  in  a  special  organ.  The  five  that  he  enumerates 
are  these :  the  royal  power,  the  executive  power,  the 
power  that  represents  permanence,  the  power  that 
represents  opinion,  and  the  judicial  power.  Of  these, 
the  executive  power  belongs  to  the  ministers,  the  judicial 
power  to  the  courts,  the  power  representing  permanence 
to  a  hereditary  assembly,  and  the  power  representing 
opinion  to  an  elective  assembly.  Above  them  all 
stands  the  royal  power,  whose  characteristic  function 

1  Constant,  Politique  Constitutionelle,  Vol.  I,  p.  13. 


KING  NOT  EXECUTIVE  261 

it  is  to  regulate  and  harmonize  the  movements  of  the 
four,  to  the  end  that  cooperation  rather  than  reciprocal 
obstruction  may  prevail  among  them. 

It  had  been  a  common  and  a  troublesome  criticism 
of  Montesquieu's  doctrine  that  in  operation  it  tended 
inevitably  either  on  the  one  hand  to  deadlock  or  on  the 
other  hand  to  the  clear  predominance  of  one  of  the 
powers  over  the  others.  Constant's  doctrine  aimed  to 
meet  both  these  tendencies  by  ascribing  to  the  royal 
power  the  single  function  of  maintaining  each  of  the 
others  in  its  proper  place  and  thus  preserving  the  gov- 
ernmental machine  in  equilibrium.^ 

Constant  is  interesting  and  ingenious  in  illustrating 
from  history  the  serious  consequences  that  resulted 
from  a  failure  to  develop  the  balancing  influence.  The 
constitutional  monarchy  as  fomid  actually  in  the  Eng- 
land of  his  day  seems  to  him  to  solve  the  great  problem 
for  which  before  no  solution  was  attainable.  The 
English  king  embodies  a  neutral  and  intermediary 
power  which  is  distinct  from  the  executive  power.  This 
distinction  between  the  royal  and  the  executive,  that 
is,  between  the  king  and  the  ministry,  is  the  most  con- 
spicuous feature  of  Constant's  doctrine.  While  the 
old  defenders  of  monarchy  saw  in  this  distinction  merely 
a  puipose  of  reducing  the  monarch  to  a  nullity,  Constant 
made  it  the  means  of  elevating  the  monarch  to  a  position 
of  the  most  serious  significance  in  the  government.  The 
trend  of  his  argument  was  to  put  the  control  of  the 
ministry  wholly  in  the  king.  The  greatly  mooted  point 
as  to  whether  the  monarch  should  be  obliged  to  dismiss 
»  Op.  cit..  Vol.  I,  ohap.  11. 


262  POLITICAL  THEORIES 

ministers  that  were  not  acceptable  to  the  representa- 
tive body,  was  left  more  or  less  in  the  background. 
Constant  pointed  out  with  special  zeal  the  importance 
of  an  unfettered  discretion  in  the  monarch  in  respect 
to  his  ministers. 

The  executive  power  [that  is,  the  ministry]  is  deposed 
without  being  prosecuted.  The  king  has  no  occasion  to 
convict  his  ministers  of  an  error,  of  a  crime  or  of  any  guilty 
undertaking  in  order  to  dismiss  them.  He  dismisses  them 
without  punishing  them.  Thus  all  that  is  necessary  happens 
without  anything  that  is  unjust ;  and,  as  always  results,  this 
method,  because  it  is  just,  is  also  useful  from  another  point 
of  view.  It  is  a  great  vice  in  any  constitution  to  leave  to 
powerful  men  only  the  alternative  of  keeping  their  power  or 
going  to  the  scaffold.^ 

'  The  effort  of  Constant  to  find  a  logical  justification 
for  the  monarch  by  considering  him  an  organ  of  govern- 
ment rather  than  the  sovereign  of  the  state,  was  quite 
characteristic  of  the  desires  of  thuiking  men  in  those 
days  of  transition  from  monarchic  to  popular  sov- 
ereignty. His  spirit  was  the  spirit  that  dominated  both 
France  and  England  in  the  days  of  the  July  monarchy. 
It  fell  short,  however,  of  successful  opposition  to  the 
growing  force  of  democratic  sentiment.  The  heredi- 
tary principle  was  always  a  stumbling  block  to  those 
who  sought  to  give  to  the  monarch  a  serious  function 
in  government,  while  at  the  other  extreme  the  demand 
for  universal  suffrage  was  the  element  of  weakness  in 
the  cause  of  undiluted  popular  government.  The 
trend  of  things,  however,  was  steadily  toward  de- 
mocracy. 

^Op.  ciL,  Vol.  I,  p.  23. 


HISTORIAN  AND  POLITICIAN  263 

4.   Guizot,  the  Doctrinaire 

This  admirable  representative  of  French  culture  in  the 
first  half  of  the  nineteenth  century  was  more  dis- 
tinguished in  historical  than  in  political  science,  and  in 
the  practical  than  the  theoretical  aspects  of  govem- 
nient.  During  the  decade  of  the  twenties  his  lectures 
at  Paris  on  the  origin  of  representative  institutions  in 
Europe  gave  him  a  prominent  place  in  the  rising  group 
of  national  historians.  Devoted  with  all  his  soul  to 
the  July  monarchy,  he  became  the  mainstay  of  Louis 
Philippe's  government,  and  as  prime  minister  bore  the 
responsibility  for  its  downfall  in  1848.  Exile  in  Eng- 
land brought  about  a  renewal  of  his  researches  in  his- 
tory, enriched  by  the  teachings  of  a  highly  instructive 
career  in  statesmanship.  His  lectures  on  the  origin  of 
representative  government  were,  after  careful  revision, 
given  to  the  public.  These,  with  his  famous  course  on 
the  general  history  of  civilization  in  Europe,  fixed  his 
reputation  for  scholarship  and  literary  power.  At  several 
points  in  his  historical  narrative  he  turned  aside  for 
philosophical  reflection,  and  it  is  from  these  digressions,^ 
colored  as  they  are  by  the  teachings  of  his  dramatic 
pubhc  career,  that  we  are  able  to  derive  the  funda- 
mentals of  his  doctrine  as  to  representative  government. 

1  Like  Benjamin  Constant,  Guizot  rejected  the  concept 
sovereignty  as  an  element  in  rational  political  theory. 
To  him  the  term  meant,  if  it  meant  anything,  an  ab- 
solute right  of  making  law  for  a  social  group  of  human 
beings  —  an  absolute  dominion  of  a  human  will  over 

^  These  are  to  be  found  chiefly  in  Representative  Government, 
Pt.  I,  leots.  vi-viii ;  Pt.  II,  leots.  x,  xv-xviii. 


/ 


264  POLITICAL  THEORIES 

other  human  wills.  Such  dominion  was  to  him 
merely  the  essence  of  tyranny,  against  which  history 
showed  that  society  in  all  its  grades  and  forms  had 
always  protested.  This  universal  protest  sufficed  to 
satisfy  him  that  the  ascription  of  absolute  power  to 
human  beings,  whether  one  or  many  or  all,  "is  an  iniq- 
uitous he."  Not  will,  but  the  instinctive  sense  of 
justice  and  reason  that  dwells  in  every  human  spirit, 
must  be  the  ultimate  basis  of  political  obligation. 

Guizot  energetically  assailed  the  long  potent  dogma 
that  stressed  the  part  of  the  will  in  the  theory  of  the 
state.  Liberty  he  held  to  be  as  little  dependent  on  will 
as  was  authority.  That  the  individual  can  be  bound 
only  by  his  own  will,  as  Rousseau  assumed,  was  to 
Guizot  absurdity.  The  individual  is  bound,  as  his 
will  itself  is  determined,  by  the  conscious  or  uncon- 
scious operation  of  the  ideas  of  reason,  truth  and  justice 
that  inhere  in  his  being  as  man. 

.  .  .  man  has  not  an  absolute  power  over  himself  in  virtue 
of  his  will :  as  a  moral  and  reasonable  being  he  is  a  subject, 
—  subject  to  laws  which  he  did  not  himself  make,  but  which 
have  a  rightful  authority  over  him,  although,  as  a  free  agent, 
he  has  the  power  to  refuse  them,  not  his  consent,  but  his 
obedience.^ 

From  this  rather  optimistic  assumption  as  to  the 
psychology  of  the  individual,  Guizot 's  nominalism 
made  easy  for  him  the  conclusion  that  political  au- 
thority rested  elsewhere  than  in  himian  volition.  For 
society  was  to  him  but  a  collection  of  individual  men, 
and  was  subject,  therefore,  to  no  other  principle  than 
that  which  controlled  in  the  life  of  each.^ 

» Rep.  Govt.,  Pt.  II,  leot.  10.  '  Ibid.,  Pt.  I,  leot.  6. 


NO   HUMAN  SOVEREIGN  265 

According  to  this  reasoning  sovereignty,  as  an  ab- 
solute norm  of  authority  in  a  state,  could  be  attributed 
neither  to  any  individual  nor  to  any  number  of  indi- 
viduals, but  only  to  reason,  truth  and  justice  —  the 
abstract  ideals  to  which  men  inevitably  tend  to  con- 
form. In  other  words,  there  was  no  place  in  political 
philosophy  for  that  concept  which  Hobbes  and  Rous- 
seau, Blackstone,  Bentham  and  Austin  had  made  the 
corner-stone_  of  all  sound  doctrine,  even  of  all  possible 
doctrine.  ;  The  monarch  of  the  Leviathan,  the  commu- 
nity of  the  Contrat  Social,  the  "supreme,  irresistible, 
absolute,  uncontrolled"  authority  that  was  placed  at 
the  summit  of  the  English  law  by  Blackstone,  and  the 
determinate  human  superior  from  which  Austin  had 
set  out  —  all  were  banned  to  the  scrap-heap  by  Guizot. 
With  that  group  of  earnest  and  talented  Frenchmen 
who  were  known  as  the  Doctrinaires,  he  strove  to  solve 
the  problems  of  France  after  1815  by  denying  sov- 
ereignty to  both  Bourbon  and  people,  and  striving  to 
satisfy  the  aspirations  of  the  times  by  glorifying  the 
rationality  and  justice  of  the  Charte} 

On  the  l^asis  of  his  idea  about  sovereignty  Guizot 
developed  his  conception  of  representative  govern- 
ment —  the  main  subject  of  his  speculation.  Govern- 
ments fell,  he  held,  into  two  classes,  according  as  they 
did  or  did  not  attribute  absolute  sovereignty  to  human 
beings,  one  or  more.  All  of  the  first  class  were  despotic. 
Representative  government  was  of  the  second  class, 

'  For  a  good  account  of  the  political  doctrines  of  the  group  to 
which  Guizot  belonged  see  Merriam,  History  of  the  Theory  of  Sov- 
ereignty since  Rousseau,  chap,  v,  "The  Sovereignty  of  Reason." 


t 


266  POLITICAL  THEORIES 

based  on  the  denial  of  the  right  in  any  man  to  make  law 
for  himself  or  anybody  else,  and  on  the  assimiption 
that  all  jpolitical  power  is  to  be  directed  to  approximat- 
ing the  reahzation  of  reason,  truth  and  justice.  A 
corollary  of  the  last  dogma  was  that  power  in  the  gov- 
ernment must  be  assigned  to  those  who  were  most 
capable  of  approaching  reason,  truth  and  justice. 
The  whole  operation  of  the  system  tended  to  gather 
up  from  the  different  parts  of  the  community  where 
it  was  to  be  f oimd  the  talent  best  adapted  for  the  reali- 
zation of  this  high  end,  and  to  open  to  this  talent  the 
opportunity  to  promote  through  the  conduct  of  govern- 
ment the  best  interests  of  the  community.  Guizot 
did  not  claim  that  the  working  of  representative  gov- 
ernment would  be  perfect;  but  he  beheved  that  it 
would  come  nearer  to  the  maintenance  of  true  liberty 
and  to  the  true  end  of  the  state  than  any  other  system 
thus  far  de\dsed.  The  conditions  in  which  the  ex- 
cellence of  representative  government  would  be  mani- 
fest he  laid  down  summarily  to  be  these :  That  indi- 
vidual liberty  should  be  understood  to  consist  in  the 
power  of  a  man  to  conform  his  will  to  reason ;  that  the 
guarantees  of  liberty  should  aim  to  secure  the  conform- 
ity of  all  wills,  both  of  governors  and  of  governed,  to 
reason ;  that  actual  power  should  be  in  no  case  absolute, 
but  in  every  case  merely  legitimate ;  and  that  power  is 
legitimate  when  it  is  recognized  and  accepted  by  the 
free  reason  of  the  men  over  whom  it  is  exercised.^ 

The  conscious  end  sought  by  Guizot  in  his  theorizing 
was  to  banish  from  political  science  the  conception  of 

»  Rep.  Govt.,  Pt.  II,  leet.  10,  at  end. 


NO   POWER  OMNIPOTENT  267 

absolute  power.  Definitive  power  he  recognized  as 
permeating  every  governmental  organization ;  the  last 
word  in  any  one  of  its  various  fields  of  action  must  be 
the  right  of  some  person  or  persons.  But  the  right  in 
any  person  or  persons  to  say  the  last  word  in  every 
field  of  action,  he  held  mcompatible  with  rationality. 
It  was  the  formal  end  of  representative  government  — 
the  highest  achievement  of  political  speculation  — 
to  provide  that  every  species  of  definitive  power  should 
meet  with  restraints  enough  to  prevent  it  from  assum- 
ing omnipotence.  The  widest  and  highest  of  these 
powers  must  especially  be  so  organized  as  to  insure 
that  it  do  not  usurp  absolute  authority,  but  act  al- 
ways within  the  rules  of  reason  and  justice.  "The 
art  of  politics,  the  secret  of  liberty,  is,  then,  to  provide 
equals  for  every  power  for  which  it  cannot  provide 
supeiiqrs." 

This  was  in  substance  the  old  theory  of  the  check 
and  balance  in  government  —  familiar  for  generations. 
Guizot's  inunediate  practical  purpose  was  to  gain  for 
the  written  constitution  of  France  the  credit  of  a 
complete  and  final  embodiment  of  this  theory.  He 
demanded  for  the  Charte  the  same  exaggerated  rev- 
erence that  had  been  accorded  by  great-minded  Eng- 
lishmen like  Burke  to  the  unwritten  constitution  of 
England.  At  the  same  time  he  freely  and  regretfully 
conceded  that  the  peculiar  success  of  the  English 
system,  a  product  of  unconscious  growth  and  adapta- 
tion to  concrete  demands,  was  not  to  be  expected 
of  any  government  that  was  planned  and  instituted 
complete  at  a  given  moment  of  time.     He  was  too 


268  POLITICAL  THEORIES 

strongly  imbued  with  the  historical  spirit  to  feel 
any  confidence  in  constitutions  scientifically  made  to 
order.*  All  that  he  hoped  from  the  Charte  was  that 
it  should  serve  as  a  sea  anchor,  steadjdng  France  till 
the  perils  of  a-priorism  and  self-consciousness  should 
pass  away,  and  she  should  be  able  to  relapse  peace- 
fully into  the  benign  influence  of  his  particular  ideas 
of  reason,  truth  and  justice. 

The  eternal  verity  that  Guizot  found  in  the  Charte 
was  its  guarantee  against  any  exaggeration  of  power 
in  either  monarch  or  people.  The  balance  between 
these  two  equally  menacing  elements  he  believed  to 
be  there  justly  maintained.  It  was  his  pathetic  fate 
to  see  himself  and  all  his  theories  repudiated  by  France, 
and  absolutism  triumphant  through  democracy  and 
monarchy  in  turn. 

5.   Tocqueville  and  Realized  Democracy 

While  the  cause  of  constitutional  monarchy  was  up- 
held by  the  doctrines  that  were  represented  so  well  by 
Constant  and  Guizot,  there  was  no  lack  of  speculation 
on  republican  and  fully  democratic  lines.  Most  of 
this,  however,  was  more  ardent  than  novel,  and  tended 
merely  to  reproduce  and  reiterate  the  ideas  that  were 
dominant  at  the  end  of  the  preceding  century.  A 
sensational  diversion  from  the  monotony  of  the  dis- 
cussion in  this  branch  of  liberalism  was  created  by 

^  See  his  criticism  of  the  analytical  method  in  modern  political 
science,  in  op.  cit.,  Pt.  II,  lect.  xv,  ad  init.  It  was  the  fortune  of 
the  English  system  that  it  developed  naturally  and  spontaneously 
out  of  facts,  when  the  science  and  artifice  that  distinguished  modern 
times  were  unknown,     hoc.  cit. 


DEMOCRACY  IN  AMERICA  269 

the  priest  Lamennais,  who  in  1834  began  his  twenty 
years  of  futile  enthusiasm  over  the  idea  of  democratiz- 
ing CathoHc  Christianity.^  He  became  eventually  a 
full  member  of  the  socialistic  group,  in  whose  doctrines 
democratic  philosophy  found  a  really  new  and  produc- 
tive field  of  development  in  and  after  1848.  This 
type  of  speculation  we  shall  take  up  for  consideration 
later.  At  the  present  point  attention  must  be  given 
to  a  discussion  of  democracy  that  was  wholly  distinct 
in  method  and  in  spirit  from  those  that  had  become 
traditional. 

It  has  appeared  in  earlier  pages  of  this  volume  that 
the  political  systems  of  the  Americans  had  been  of 
more  than  negligible  influence  in  motivating  the  French 
Revolution  of  1789.  With  the  submergence  of  re- 
publican ideas  in  the  Napoleonic  period  and  that  of 
the  Bourbon  restoration,  the  great  experiment  of  the 
United  States  ceased  to  receive  much  attention.  Lib- 
eral exiles  from  the  disturbed  regions  of  the  Old  World 
found  a  safe  refuge  but  httle  comfort  in  the  crude  com- 
munities of  North  America.  The  adherents  of  con- 
stitutional monarchy  assumed,  without  much  investi- 
gation, that  the  peculiar  people  across  the  ocean  could 
furnish  no  suggestions  that  would  be  of  use  where 
royalty  was  of  the  essence  of  rational  government. 
Then,  in  1835,  the  first  volume  of  Tocqueville's  Democ-  ^ 
racy  in  America  appeared,  and  throughout  the  intel- 
lectual circles   of  Western   Europe  both   democracy 

^  His  Paroles  d'un  croyant  appeared  in  1834.  For  a  full  and 
impartial  account  of  his  life  and  works,  see  SpuUer,  Lamennais, 
Paris,  1892.  Suggestive  also  is  Laskd,  Authority  in  the  Modern 
State,  jiha.^.  iii. 


270  POLITICAL  THEORIES 

and  America  took  on  a  new  aspect  and  a  new  sig- 
nificance in  political  speculation. 

A  general  analysis  of  Tocqueville's  famous  work 
cannot  be  undertaken  here.  Its  scope  far  exceeds 
the  field  in  which  we  are  interested,  and  its  influence 
in  our  limited  field  was  not  of  the  greatest.  On  cer- 
tain points^  however,  in  the  working  of  democratic 
government  under  a  written  constitution,  Tocque- 
ville's acute  observation  and  brilliant  literary  expres- 
sion established  a  new  canon  in  political  science.  We 
shall  confine  our  attention  in  this  place  to  his  method 
in  general  and  to  his  exposition  of  two  or  three  features 
of  the  constitutional  system  in  action.^ 

In  method  Tocqueville  continues  the  line  of  Aris- 
totle, Polybius,  Machiavelli,  Bodin  and  Montesquieu. 
The  last-named  is  at  many  points  an  openly  imitated 
model.  Like  all  these  great  thinkers,  TocqueviUe  makes 
the  observation  of  facts  the  basis  of  his  philosophiz- 
ing on  politics.  He  differs  from  Aristotle  and  Bodin 
in  making  no  effort  to  work  out  a  complete  science 
of  the  state ;  and  he  differs  from  Montesquieu  in  con- 
fining his  comment  to  the  laws  and  customs  of  a  single 
people.  To  Machiavelli's  Discourses  on  Livy  the 
Democracy  in  America  has  a  striking  kinship^:  the 
Florentine's  search  among  Roman  institutions  for 
lessons  that  shall  profit  the  Italian  republicanism  of 
the  fifteenth  century  is  closely  paralleled  by  the  Breton's 
investigation  of  America  for  the  benefit  of  French 
republicanism   in   the   nineteenth.    But    Machiavelli 

*  The  Democracy  in  America  is  the  only  work  that  shaU  concern 
us  here.  His  other  writings  had  no  important  bearing  on  the  his- 
tory of  nineteenth-century  constitutionalism. 


TOCQUEVILLE'S   METHOD  271 

took  his  facts  at  second  hand,  while  Tocqueville  wrote 
on  the  basis  of  personal  observation.  At  this  point 
the  French  philosopher  comes  into  close  connection 
with  Polybius,  whose  analysis  of  the  Roman  state 
sprang  from  the  note-book  of  the  foreigner.  As  Polyb- 
ius's  conception  of  the  Roman  constitution  formed 
the  basis  of  all  systematic  speculation  on  the  subject 
later  among  the  Romans  themselves,  and  as  Montes- 
quieu furnished  the  English  with  the  first  coherent 
theory  of  their  constitution,  so  Tocqueville's  exposition 
of  the  American  democracy  has  been  the  source  of  many 
of  the  commonplaces  in  the  conception  of  their  institu- 
tions that  has  became  traditional  among  the  people  of 
the  United  States. 

The  tenacity  with  which  Guizot  and  other  liberals 
resisted  every  intrusion  of  democratic  ideas  was  due 
in  large  measure  to  the  memories  of  the  Jacobin  regime.,! 
It  was  firmly  believed  that  no  constitutional  provisions, 
however  astutely  devised,  could  prevent  a  government 
based  on  popular  sovereignty  from  becoming  sooner  or 
later  an  odious  despotism.  Universal  suffrage  was 
sure  to  be  the  electoral  law,  and  this  would  inevitably 
mean  the  tyranny  of  a  majority,  regardless  of  all 
restrictions  that  might  be  imposed  by  a  constitution. 
Tocqueville's  great  service  was  to  set  in  a  clear  light 
the  agencies,  both  within  and  without  the  formal 
prescriptions  of  the  written  fundamental  law,  through 
which,  in  the  American  system,  this  dreaded  evil 
was  mitigated  and  postponed,  if  not  escaped  altogether. 

He  pointed  out,  in  the  first  place,  the  qualifications 
permeating  the  principle  of  sovereignty.    His  own  con- 


272  POLITICAL  THEORIES 

ception  of  sovereignty  was  wholly  lacking  in  precision, 
tending  on  the  whole  to  agree  with  that  of  Guizot  and 
Constant.  It  was  the  ultimate  lawmaking  authority, 
but  it  was  not  absolute  in  any  human  will,  whether 
.\.  |«;'  individual  or  collective.  It  was  in  last  analysis  justice 
and  reason  only;  and  what  was  just  and  reasonable, 
he  declared,  with  confusing  inconsequence,  was  to  be 
found  in  the  will  of  the  majority  of  all  mankind.-^ 
Such  inconsistency  in  thinking  about  sovereignty  was, 
however,  not  out  of  place  in  a  discussion  of  the  Ameri- 
can political  system ;  for  there  was  as  yet  no  consensus 
in  the  United  States  as  to  the  abode  or  even  the  attri- 
butes of  this  elusive  entity,  and  the  many  constitutions, 
state  and  federal,  with  all  their  elaborate  formulas, 
gave  no  conclusive  demonstration  that  soviereignty  be- 
longed either  to  the  states,  individually  or  collectively, 
or  to  the  people  as  a  whole,  or  to  the  people  segre- 
gated in  the  several  state  communities.  Each  of  these 
views,  as  well  as  various  others,  was  propounded  from 
time  to  time  by  speculative  minds,  but  the  most  com- 
mon idea  was  that  supreme  power  was  di\dded  between 
the  United  States  and  the  individual  states,  each  being 
sovereign  in  its  sphere. 

This  was  the  dogma  adopted  by  Tocqueville,  with- 
out question  as  to  the  solution  of  the  difficult  problems 
of  logic  suggested  by  it.  The  theory  served  his  pur- 
pose by  exhibiting  at  the  very  base  of  the  system  an 
agency  through  which  the  perils  of  democracy  were 
avoided.     Since  the  constitution  itself  denied  certain 

^  Democracy  in  America  (Reeve-Bowen  trans.),  I,  p.  330  et  seq. 
Compare  p.  154. 


A  NEW  CHECK  AND  BALANCE       273 

powers  to  the  states  and  certain  others  to  the  general 
government,  there  could  be  no  claim  to  absolute 
authority  by  either  branch  of  the  dual  system.  More- 
over, there  must  be  a  natural  tendency  of  the  states  to 
resist  illegitimate  extension  of  its  powers  by  the  general 
government,  and  vice  versa.  Thus  was  revealed  a  new 
item  in  the  list  of  checks  and  balances  through  which 
liberty  was  insured  —  an  item  that  was  excluded  by 
the  nature  of  the  case  from  every  unitary  system. 

Tocqueville  was  quite  aware  that  this  piinciple  had 
been  employed  in  a  crude  form  in  earlier  confedera- 
tions of  states;  but  he  detected  and  set  forth  with 
clearness  the  features  of  its  application  in  America 
that  gave  a  distinctive  character  to  the  United  States, 
whose  government  he  thought  must  be  designated  as 
incompletely  national  rather  than  strictly  federal, 
\It  was  at  all  events,  he  believed,  a  new  type  of  political 
organization,  for  which  a  special  name  had  not  yet 
been  devised.^  Its  appearance  had  been  due  to  the 
special  needs  of  the  Americans  immediately  after 
achieving  their  independence.  Whether  the  new  de- 
vices would  be  available  for  other  peoples  was  far 
from  certain ;  the  late  attempt  of  the  Mexicans  to  use 
them   had   proved   a   dismal   failure.^    In   any   case, 

^  Op.  cit.,  I,  p.  201.  Tocqueville  seems  to  have  been  unfamiliar 
with  the  German  distinction  between  Staatenbund  and  Bundesstaat. 
Pfizer  published  in  1835  an  influential  work  on  German  pubUc 
law  in  which  he  sought  to  show  how  the  German  Bund  had  in  it 
the  making  of  a  Bundesstaat.  —  See  Bibliography,  infra. 

2  "The  Constitution  of  the  United  States  resembles  those  fine 
creations  of  human  industry  which  insure  wealth  and  renown  to 
their  inventors,  but  which  are  profitless  in  other  hands.  This 
truth  is  exemplified  by  the  condition  of  Mexico  at  the  present  time." 
—  lUd.,  211. 


274  POLITICAL  THEORIES 

however,  it  behooved  the  philosophical  observer  to 
note  critically  and  dispassionately  the  new  phenomenon 
in  political  science. 

The  chief  feature  that  made  the  United  States  unique 
among  federal  systems  was  the  assignment  to  the  gen- 
eral government  of  the  power  to  enforce  its  authority 
over  citizens  by  direct  action  of  its  own  officials  rather 
than  indirectly  through  the  officials  of  the  states. 
This  afforded,  Tocqueville  thought,  a  necessary  cor- 
rective to  the  anarchic  tendency  that  commonly  mani- 
fested itself  in  confederacies.  It  strengthened  the 
central  government  as  against  the  states.  On  the 
other  side  the  integrity  of  the  states  was  guaranteed 
by  their  possession  of  all  residual  authority  outside  of 
the  limited  field  ascribed  to  the  United  States.  Against 
both  governments  the  rights  of  the  individual  were 
secured,  not  only  by  the  constitutional  restrictions 
familiar  in  Europe,  but  especially  by  two  devices  that 
aroused  the  liveliest  curiosity  and  interest  in  the 
philosopher.  These  were,  first,  the  extreme  decentrali- 
zation of  administration,  and  second,  the  exalted 
political  function  of  the  judiciary  in  its  power  to  pass 
upon  the  constitutionality  of  legislative  and  executive 
acts.-^  These  two  elements  in  the  American  system 
were  first  brought  into  prominence  among  European 
thinkers  by  the  descriptions  and  eulogies  framed  by 
Tocqueville.  From  his  time  to  the  present  day  they 
have  been  continuously  in  the  focus  of  historical,  con- 
stitutional and  juristic  discussion. 

The  origin  and  influence  of  these  two  features  of 

*  Op.  ciL,  I,  chaps,  v  and  vi. 


TWO  IMPORTANT  NOVELTIES  275 

American  political  life  are  set  forth  with  great  accuracy 
and  impartiality  by  Tocqueville.  He  finds  in  both  of 
them  an  important  part  in  the  successful  career  of  con- 
stitutional democracy.  The  exclusion  of  a  remote 
and  unfamiliar  authority  from  the  management  of 
local  affairs  has  a  wholesome  effect  upon  the  interest 
and  activity  of  the  community  in  its  own  business, 
and  so  by  suggestion  upon  its  concern  in  the  wider 
sphere.  Self-government  in  the  towns  and  counties 
is  the  primary  manifestation  of  the  democratic  spirit 
that  is  essential  to  the  whole  system.  It  furnishes 
also  a  most  significant  item  in  the  list  of  reciprocal 
checks  upon  the  undue  extension  of  governmental 
activity.  Where  it  prevails  there  is  no  opportunity 
for  the  development  of  the  oppression  that  is  likely 
to  accompany  a  wide-reaching  authority  in  the  central 
administration.^ 

Of  somewhat  similar  significance  is  the  position  as- 
sumed in  the  American  system  by  the  judiciary.  In 
the  mere  fact  that  the  courts  have  a  decisive  voice  in 
interpreting  the  constitution  and  in  passing  upon  the 
vaHdity  of  statutes,  Tocqueville  sees  a  check  upon  both 
legislature  and  executive  that  is  wholly  unknown  in 
Europe.  It  restores  to  something  like  an  equal  place 
in  Montesquieu's  triad  of  separated  powers  that  one 
which  had  been  reduced  to  practical  nullity,^  and  thus 
strengthens    again    the   guarantees    against    tyranny. 

*  Toequeville's  reflections  upon  the  nature  and  effects  of  cen- 
tralization in  government  and  in  administration,  the  two  being 
carefully  distinguished,  constitute  one  of  the  most  famous  and 
influential  passages  in  his  work.     See  op.  cit.,  Vol.  I,  p.  107  et  seq. 

^  Supra,  p.  115. 


276 


POLITICAL  THEORIES 


,u:>- 


Nor  is  the  manner  less  praiseworthy  than  the  fact  of 
this  exaltation  of  the  judiciary  by  the  Americans.  To 
set  the  court  up  in  open  political  conflict  with  the  legis- 
lature would  be,  Tocqueville  sees,  disastrous;  but 
when  the  invahdity  of  a  statute  is  determined  as  a 
mere  incident  of  a  private  lawsuit,  "in  an  obscure 
debate  on  some  particular  case,"  the  danger  of  trouble 
is  reduced  to  the  minimum/ 

The  treatment  of  these  two  capital  items  in  the 
American  system  well  illustrates  Tocqueville's  general 
purpose.  He  aims  to  show  that  the  democracy  which 
for  the  first  time  in  history  appears  successful  in  a 
large  population  and  territory  rests  essentially,  not  on 
the  prescriptions  of  the  written  constitutions  (though 
these  documents  are  so  numerous  and  so  skilfully 
framed  in  the  United  States),  but  on  the  history  and 
character,  the  environment,  manners  and  morals  of 
x^  *^®  people.  Neither  decentralization  nor  the  power 
\  of  the  courts  to  nullify  legislation  is  formally  embodied 
in  the  written  constitutions,  but  both  have  become 
vital  elements  in  American  polity.  It  is  not  to  be 
inferred,  therefore,  that  the  deliberate  incorporation  of 
these  institutions  in  the  fundamental  law  of  another 
nation  would  at  all  insure  the  benefits  that  flow  from 
them  in  the  United  States.  Thus  Tocqueville  guards 
against  undue  stress  on  the  volitional  and  conscious 
forces  in  political  life,  and  teaches  that  democracy, 
though  certain  to  prevail  ultimately  throughout  the 
civilized  world,  will  not  come  by  the  making  of  con- 
stitutions, however  ingenious,  but  gradually,  by  the 
» Ov.  cit.,  I,  p.  128. 


TYRANNY   OF  THE   MAJORITY  277 

unnoticed  transformation  of  social  conditions  and 
ideals.^ 

The  evil  of  democracy  that  Tocqueville  finds  in- 
evitable and  most  dangerous  is  the  tyranny  of  the  ma- 
jority. Universal  suffrage  (that  is,  manhood  suffrage) 
he  regards  as  of  the  essence  of  democracy,  and  imi- 
versal  suffrage  means  the  ultimate  control  of  all  legis- 
lation by  the  mass  of  the  people.  Constitutions,  as 
well  as  ordinary  statutes,  will  be  made  to  conform  to 
the  majority  will.  Nor  will  there  be  any  reHef  in  an 
appeal  to  public  opinion  against  injustice  that  is  con- 
firmed by  law ;  for  the  same  majority  that  makes  the 
law  makes  public  opinion.  With  whatever  mitigations 
American  practice  has  imbued  this  hard  rule,  its  sway 
is  manifest  on  all  sides.  One  who  holds  ideas  outside 
the  circle  drawn  by  the  belief  of  the  majority  can  have 
no  political  career  or  desirable  social  relations.  In 
this  is  a  tyranny  more  odious  and  more  deadly  than 
that  of  any  monarch. 

Tocqueville's  despaning  insistence  on  this  point  of 
menace  to  democratic  institutions  is  remarkable  and 
betrays  the  influence  of  some  cause  that  blurs  his  usually 
acute  perceptions  of  the  realities  of  things.  For  he 
seems  to  think  of  a  majority  as  a  definite,  unchanging 
aggregate,  whose  will  and  purpose  are  beyond  the  in- 
fluence of  external  conditions,  instead  of  a  casual  group, 

^  An  interesting  light  on  Tocqueville's  insight  into  practical 
and  contemporary  tendencies  in  France,  whose  special  problems 
were  always  in  his  mind,  is  thrown  by  his  relations  to  the  revolution 
in  1848,  whose  approach  he  predicted.  From  the  advertisement 
to  the  twelfth  edition  of  the  Democracy  in  America,  published 
in  1850,  it  appears  that  he  did  not  divine  the  approach  of  the 
Empire. 


278  POLITICAL  THEORIES 

ceaselessly  changing  in  physical  constituents  and  psy- 
chological character. 

As  a  whole,  however,  his  estimate  of  the  forces  and 
tendencies  inherent  in  the  American  system  and  in 
democracy  in  general  is  amazingly  acute  and  judicious. 
His  great  work  had  an  instantaneous  and  continuing 
effect  on  political  theory  on  both  sides  of  the  Atlantic, 
and  served  in  particular  to  counteract  in  a  marked  de- 
gree the  exaggerated  confidence  of  liberals  in  the 
efficacy  of  the  wiitten  law.^  v^^V-  "^ 

6.   German  Constitutional  Theory:   The  Bundesstaat 

Tocqueville's  exposition  of  the  American  federal 
system  did  not  fail  to  enter  substantially  into  the  specu- 
lations of  contemporary  German  politics.  The  agita- 
tion throughout  the  German  states  that  culminated  in 
the  affairs  of  1848  was  focussed  chiefly  at  two  points : 
first,  the  constitutional  position  of  the  monarch  in  the 
g  various  states ;  and  second,  the  union  of  these  states 
and  of  the  whole  German  people  into  a  strong  and 
efficient  federation. 

As  has  already  been  indicated,  the  monarchic  prin- 
ciple generally  prevailed  over  republicanism  in  con- 
II  stitutional   practice,    and   received    a   well-developed 
{[  theoretical  support.     The  prince  was  conceived  as  a 
wholly  self-dependent  political  entity,  possessing  far- 

1  Of  all  the  many  judgments  on  Tocqueville's  work,  that  of 
Bryce,  published  just  before  the  appearance  of  his  own  great  study 
of  the  United  States,  has  for  many  reasons  the  most  interest  and 
value  for  students  of  political  theory  at  the  present  day.  See 
his  essay,  "The  Predictions  of  Hamilton  and  Toequeville,"  in  the 
Johns  Hopkins  Studies  in  Historical  and  Political  Science,  Series 
V,  No.  IX ;  also  in  his  Studies  in  History  and  Jurisprudence,  p.  301. 


KING  PLUS  PEOPLE   MAKE   STATE  279 

reaching  powers  in  the  government.  Whence  these 
powers  were  derived  was  variously  answered.  Some 
said,  with  the  voice  of  the  antiquated  obscurantist, 
"from  God";  others  said,  "from  nature";  others, 
"from  history"  ;  others  still,  "from  the  nation  or  the 
state."  What  no  defender  of  the  monarchic  principle 
would  say  was,  "from  the  people."  It  was  axiomatic 
with  this  school  of  thought  that  the  people  no  more 
made  the  king  than  the  king  made  the  people.  The 
kingship,  historically  considered,  took  form  and  de- 
veloped pari  passu  with  the  people  (das  Volk),  and  the 
two,  king  and  people,  constituted  the  state.  Neither 
without  the  other  would  suffice  to  maintain  its  exist- 
ence.^ Each  must  have  its  logical  and  independent 
place  in  any  constitution  that  may  be  formulated  for 
the  state. 

As  to  the  powers  that  are  indispensable  to  the  king- 
ship in  a  constitutional  monarchy,  there  was  also  much 
difference  of  opinion  among  the  philosophers.  All 
agreed  that  the  king  must  be  more  than  a  mere  execu- 
^jye,  that  his  headship  of  the  state  must  mean  real 
directing  power,  not  the  passivity  of  a  symbol  or 
figurehead.  The  concrete  functions  essential  to  this 
character  ranged  in  theory  as  in  practice  through  the 
whole  gamut  of  possibilities.     At  one  exi^reme  the  royal 

^  This  is  substantially  the  doctrine  of  Waitz,  in  his  essay  on 
"  Das  Konigthum  und  die  verfassungsmassige  Ordnung,"  in  his 
Grundziige  der  Politik,  p.  128.  For  other  shades  of  doctrine  in  this 
matter  in  the  fifties,  when  the  excited  debates  of  the  revolution 
time  were  giving  way  to  calmer  reflection,  consult  Stahl,  Rechts- 
und  Staatslehre,  II,  Kap.  12,  Abschnitt  iii,  "  Das  monarchische 
Princip."  Also,  Bluntsehli,  Allgemeine  Staatslehre,  Bueh  6,  Kap. 
xiv-xvi. 


280  POLITICAL   THEORIES 

sphere  was  held  to  include  the  sole  initiative  and  an 
absolute  veto  in  legislation,  and  an  ordinance  power  with 
no  limit  save  the  explicit  terms  of  the  law.  At  the 
other  extreme  the  royal  part  in  legislation  was  restricted 
in  substance  by  the  assignment  of  concurrent  initiative 
to  the  chambers,  and  in  operation  by  the  imposition 
of  more  or  less  extensive  responsibilities  upon  the 
ministers;  while  the  ordinance  power  and  the  whole 
complex  of  authorities  inherent  m  the  idea  of  "govern- 
ing" (Regierung)  were  subjected  to  narrow  definition 
by  the  constitution  itself.  In  this  matter  of  the 
monarchic  principle  German  theory  made  a  little 
advance  in  scientific  formulation,  but  practically  none 
in  substance,  beyond  what  had  been  involved  in  the 
French  constitutional  debates  from  1789  on.  Where 
German  theory  brought  novelty  into  the  European 
discussion  was  at  the  point  where  the  unification  of 
Germany  became  the  dominant  practical  issue. 

The  movement  for  German  unity  in  1848  took  prac- 
tical form  in  the  famous  constitutional  assembly  at 
Frankfort.^  This  body  framed  a  constitution  that 
failed,  however  to  go  into  actual  operation.  The 
failure  was  due  to  facts  that  were  quite  apart  from  the 
theories  expressed  in  the  document.  The  work  of  the 
Frankfort  Assembly  and  the  whole  movement  that 
centered  in  this  work  had  their  chief  source  in  the 
feeling  of  national  unity  among  the  German  peoples. 
This  sentiment  of  nationality  was  a  conspicuous  feature 

^  Brief  notice  in  Hazen,  Europe  since  1815,  chap,  viii ;  fuller 
in  Miiller,  Political  History  of  Recent  Times,  sec.  17.  Summary  of 
proceedings  in  Mollat,  Reden  und  Redner  des  ersten  deutschen  Parlor 
ments. 


DEMAND  FOR  GERMAN  UNITY  281 

of  European  psychology  by  the  middle  of  the  nine- 
teenth century,  and  its  philosophical  aspects  will  en- 
gage our  attention  later.^  Here  we  have  to  consider 
the  peculiar  doctrines  involved  in  the  framing  of  a  writ- 
ten constitution  that  should  satisfy  the  aspirations  of 
the  peoples. 

From  1815  to  1848  Germany  was  politically  a  league 
of  states  (Staatenbund) ,  whose  sole  organ  of  union  was 
a  diet  consisting  of  delegates  appomted  and  controlled 
by  the  governments  of  the  various  states.  These 
governments  were  in  all  but  a  very  few  cases  monarchic ; 
hence  the  full  sovereignty  of  every  one  of  the  princes 
was,  in  accordance  with  the  prevailing  ideas  of  the 
time,  presumed  without  debate.  To  the  rising  liberal 
and  nationahstic  sentiment  of  the  time  the  need  of  the 
situation  was  that  Germany  as  a  whole  should  in  some 
way  be  made  to  figure  as  a  state.  There  was  no  de- 
sire save  among  a  few  visionaries  to  abolish  the  indi- 
vidual states.  The  feeling,  however,  that  they  should 
be  united  in  some  such  manner  as  to  make  Germany 
superior  in  power  and  dignity  to  any  of  its  component 
parts,  and  equal  to  France  or  Great  Britain,  was  pas- 
sionate and  widespread.  Germany,  the  demand  was, 
must  be  no  longer  a  confederacy,  but  in  the  full  sense 
of  the  word  a  state. 

History  furnished  many  instances  of  confederation 
through  which  groups  of  states  effected  certain  common 
purposes  by  means  of  powers  delegated  more  or  less 
permanently  to  a  common  government.  Not  till  the 
most  recent  times,  however,  had  there  appeared  a  form 
^  Infra,  chap.  viii. 


282  POLITICAL  THEORIES 

of  organization  in  which  the  elements  and  attributes 
of  the  common  government  made  the  union  as  a  whole 
as  truly  a  state  as  was  each  of  its  constituent  members. 
Switzerland  and  the  United  States  of  America  were 
known  by  1848  to  have  assimied  this  character.^  The 
constitutions  of  these  two  unions  therefore  had  a  great 
influence  in  shaping  the  projects  and  theories  of  those 
who  were  promoting  German  unity.  Especially  stim- 
ulating was  the  system  of  the  American  republic,  after 
Tocqueville's  penetrating  analysis  had  brought  to  the 
attention  of  Europe  the  peculiar  principles  embodied 
in  it.  :  The  constitution  of  the  United  States  furnished 
the  Frankfort  constituent  assembly  with  much  that 
was  most  significant  in  the  ill-fated  project  that  resulted 
from  its  deliberations.  Likewise  after  the  futility  of 
this  particular  wTitten  constitution  was  proved,  Ger- 
man theorists  about  political  science  continued  to  per- 
fect on  the  lines  of  American  debate  the  logical  concept 
of  the  Bundesstaat. 

That  repubhcan  government  was  the  universal  form 
in  the  United  States  while  practically  all  the  German 
states  were  monarchic,  was  held  by  many  to  render 
the  theory  of  the  American  system  wholly  inapplicable 
on  the  other  side  of  the  Atlantic.  There  was  indeed 
no  room  for  doubt  that  thetenacity  with  which  the 
monarchic  principle  was  mainxained  had  much  to  do 

^  In  Switzerland  a  long  series  of  bitter  political  controversies 
culminated  in  1847  in  civil  war,  the  War  of  the  Sonderbund.  Cer- 
tain of  the  cantons  sought  to  reject  the  authority  of  the  general 
government.  After  the  secessionists  had  been  suppressed  by  force 
a  new  constitution,  in  1848,  made  secure  for  the  future  the  perma- 
nence of  the  union  and  the  authority  of  the  general  government. 


THE   AMERICAN  UNION-STATE  283 

with  the  failure  of  the  Frankfort  project.  Yet  those 
were  on  firm  logical  ground  who  held  that  the  essential 
principle  of  the  Bundesstaat  was  in  no  way  affected  by 
the  special  form  of  government  in  either  central  power 
or  member-state,  and  that  the  Germans  at  Frankfort 
in  1848  gave  the  first  expression  in  history  to  the  mon- 
archic type  of  this  new  form  of  union,  as  the  Americans 
at  Philadelphia  in  1787  gave  the  first  expression  to  the 
repubhcan  type.^ 

There  was  no  disposition  to  deny  to  the  Americans 
priority  in  detecting  the  basic  feature  of  the  Bundes- 
staat} And  what  was  this  feature?  Merely  what 
Tocqueville  had  laid  such  stress  on,  a  general  govern- 
ment so  complete  in  organization  and  so  endowed  with 
power  as  to  be  able  to  perform  its  functions  and  enforce 
its  authority  without  recourse  to  the  governments  of 
the  member-states.  Where  such  a  general  government 
existed,  there  was  implied  a  people  seeking  to  realize 
the  ends  of  political  life,  some  through  this  organization 
and  others  through  the  state  governments.  But  the 
organization  of  a  people  to  attain  the  ends  of  political 

1  Cf.  Waitz,  Grundziige  der  Politik,  pp.  209-210.  But  Waitz 
apparently  believed  that  the  Bundesstaat  existed  among  the  Greeks. 

^  Treitschke,  in  his  Historische  und  Politische  Aufsdtze,  II,  113, 
declares  that  the  fundamental  principle  of  the  Bundesstaat  was 
first  clearly  developed  by  Alexander  Hamilton  in  the  Continentalist 
and  the  Federalist.  The  principle  was,  that  when  a  political  organ 
is  endowed  with  a  right,  the  power  necessary  to  the  exercise  of  the 
right  must  be  presumed  to  go  with  it.  From  this  it  followed  that 
in  a  union  of  states  the  central  government  must  have  power  to 
enforce  its  laws  upon  the  individual  citizens.  This  hahnbrecheride 
idea  was  discussed  by  the  Americans  solely  with  respect  to  their 
peculiar  practical  problems.  Waitz  was  the  first,  Treitschke  says, 
to  treat  the  idea  systematically  and  "  with  the  profound  earnestness 
of  German  science." 


284  POLITICAL   THEORIES 

life  is,  as  Waitz  lays  down/  the  definition  of  the  state. 
Where  the  organization  takes  the  form  of  a  single  gov- 
ernment exercising  all  the  necessary  powers  in  every 
field,  there  is  a  unitary  state  (Einheitsstaat) ;  where 
the  powers  are  divided  between  two  governments,  each 
independently  exercising  its  own,  there  is  a  union-state 
{Bundesstaat) }  Sovereignty,  as  designating  indepen- 
dent and  final  authority,  may  properly,  in  the  judgment 
of  Waitz  and  others,  be  ascribed  alike  to  the  union-state 
and  to  the  indi\ddual  state,  each  in  its  proper  sphere. 
For  sovereignty  is  conceived  as  meaning  authority  that 
is  supreme  and  unquestionable,  but  not  authority  that 
extends  over  all  conceivable  subject  matter. 

On  this  point  of  the  divisibility  of  sovereignty,  as  on 
pretty  much  every  other  phase  of  the  general  question, 
there  were  sharp  differences  of  opinion  among  the 
Germans.  The  course  and  substance  of  their  contro- 
versies involved  little  that  had  not  been  exhibited  in 
the  legal  and  political  arena  of  the  United  States.  The 
dogma  of  sovereignty  according  to  spheres  had  been 
propounded  by  all  the  leading  American  publicists. 
The  "Union"  that  Daniel  Webster  had  become  im- 
mortal in  defending  was  the  ob\dous  prototype  of  the 
Frankfort  Bundesstaat.  John  C.  Calhoun's  trenchant 
attack  on  the  doctrine  of  divided  sovereignty,  though 

^  ".  .  .  die  Organisation  eines  Volks  zur  Erfiillung  seiner  hoh- 
eren  Lebensaufgaben.  .  .  ."  —  Grundzilge  der  Politik,  p.  163. 

2  It  has  been  commonly  assumed  that  the  proper  English 
equivalent  of  Bundesstaat  is  "  federal  state."  But  many  acute 
reasoners,  like  Professor  J.  W.  Burgess,  insist  that  while  government 
may  be  federal,  state  may  not,  and  the  expression  "federal  state" 
is  meaningless.  "Union-state"  as  the  rendering  of  Bundesstaat 
would  seem  to  be  immune  to  this  particular  objection. 


THE    MONARCHIC   BUNDESSTAAT  285 

apparently  not  yet  well  known  across  the  Atlantic, 
was  not  exceeded  in  effect  by  the  parallel  criticism  of 
like-thinking  Germans,  and  his  dogma  of  state-sover- 
eignty was  destined  to  furnish,  when  made  readily 
accessible/  valuable  aid  and  comfort  to  the  partisans 
of  Particularismus  in  the  Empire  that  Bismarck 
brought  into  being. 

Neither  the  German  nor  the  American  theorists  were 
successful  in  so  defining  the  Bundesstaat  as  to  insure  to 
it  general  recognition  as  a  new  species  of  the  genus  state. 
The  Germans  were  embarrassed  by  their  monarchic 
principle.  This,  taken  in  connection  with  their  doc- 
trine that  sovereignty  was  divisible,  made  every  reign- 
ing prince  the  absolute  possessor  of  some,  if  not  all,  of 
the  governmental  powers  in  his  dominions.  To  super- 
impose on  these  "sovereigns"  a  monarchic  government 
whose  chief  must  be  recognized  as  endowed  with  powers 
and  dignity  as  exalted  and  indefeasible  as  theirs,  was 
possible  in  theory ;  but  the  resulting  system  would  in- 
evitably involve  such  diffusion  of  power  and  uncer- 
tainty of  its  tenure  as  to  suggest  confederacy  or  an- 
archy rather  than  the  definiteness  of  a  state. ^ 

1  The  works  in  which  Calhoun  most  systematically  developed  his 
doctrine  were  published  only  in  1851,  the  year  after  his  death. 

^  The  Frankfort  assembly,  after  completing  its  constitution  for 
Germany,  offered  to  Frederick  William  IV  of  Prussia  the  headship 
of  the  new  government,  with  the  title  ".Emperor  of  the  Germans." 
The  dignity  was  declined  partly  because  the  offer  came,  not  from 
the  princes  of  the  German  states,  but  from  the  representatives 
of  the  people,  and  partly  because  acceptance  clearly  would  be 
followed  by  a  difficult  and  uncertain  war  to  enforce  the  new  system 
upon  Austria  and  many  other  states.  All  the  circumstances 
showed  that  the  particular  Bundesstaat  formed  at  Frankfort  had 
in  it  none  of  tlie  elements  of  order  and  progress. 


286  POLITICAL   THEORIES 

A  more  coherent  and  admissible  concept  of  the 
Bundesstaat  as  a  real  state  was  developed  by  those  who 
relegated  the  monarch  to  the  position  of  a  mere  execu- 
tive, and  regarded  a  people  as  the  essential  and  self- 
sufficient  basis  of  whatever  was  entitled  to  the  name  of 
state.  In  the  people  was  to  be  found,  according  to  this 
view,  the  source  of  all  the  powers  vested  in  both  state 
and  federal  governments  and  the  final  authority  in 
deciding  where  ran  the  line  of  partition  between  them. 
The  people  was  the  constituent  entity  and  the  con- 
stitution was  the  people's  will  as  to  how  the  functions 
of  state  life  were  to  be  di^dded  for  exercise  between 
two  organizations  and  distributed  among  the  various 
departments  of  each.  A  Bundesstaat,  then,  was  a  state 
in  which  the  sovereign  people  had  a  dual  rather  than  a 
single  governmental  organization,  and  assigned  to  each 
branch  a  part,  not  of  sovereignty,  but  of  the  powers  to 
J  be  exercised  for  the  good  of  the  state  by  the  government. 

This  explanation  of  the  Bundesstaat  had  few  or  no 
supporters  in  Germany.  It  smacked  too  much  of 
democracy  and  dangerous  radicalism.  There  was  in- 
deed endless  iteration  of  the  cry  that  the  Frankfort 
assembly  was  the  constitution-making  organ  of  the 
German  people,  and  that  the  fundamental  law  there 
formulated  was  the  people's  will.  Yet  conscientious 
philosophers,  even  of  advanced  liberal  views,  were  slow 
to  take  this  doctrine  seriously ;  for  the  German  princes 
were  in  theory  distinctly  set  off  from  the  German  people, 
and  in  practice  it  was  clearly  the  princes  rather  than 
the  people  that  determined  the  fate  of  the  Frankfort 
movement. 


A   DEMOCRATIC   UNION-STATE  287 

In  America  the  conception  of  the  Bundesstaat 
outlined  above  became  after  the  middle  of  the  nine- 
teenth century  predominant  among  reflecting  men.^ 
The  idea  that  sovereignty  was  divisible  lost  its  hold 
through  the  powerful  logic  of  Calhoun,  and  the  grow- 
ing might  of  triumphant  democracy  nourished  the 
dogma  that  in  the  people  must  be  found  sovereignty, 
not  only  in  the  sense  of  the  power  to  say  the  last  word 
in  matters  of  governmental  practice,  but  in  that  more 
comprehensive  sense  for  which  Blackstone  furnished 
the  formula  —  the  power  that  is  "supreme,  irresistible, 
absolute,  uncontrolled."  With  sovereignty  and  the 
making  of  governments  and  constitutions  an  indefeas- 
ible attribute  of  the  people,  the  federal  system  could 
be  neatly  fitted  into  the  theory  of  the  state.  Not  that 
it  was  a  new  species  of  state.  With  the  distinction 
between  state  and  government  duly  regarded,  there  was 
clearly  no  such  thing  as  a  "federal  state,"  as  the 
expression  went,  but  merely  a  unitary  state  with  a 
federal  government. 

But  the  clearing  up  of  theory  by  American  facts  and 
ideas  did  not  serve  to  solve  all  the  problems  that  were 
inherent  in  the  conditions.  To  make  it  clear  that 
sovereignty  was  in  the  people  did  not  save  the  United 
States  from  a  barbarous  civil  war,  in  which  the  loca- 
tion of  sovereignty  was  a  leading  issue.  The  old  ques- 
tion recurred  with  appalling  consequences  —  Who 
constitute  the  people  in  whom  sovereignty  inheres? 
Is  the  partition  of  powers  between  the  two  govern- 

*  Cf.  the  interesting  discussion  in  Merriam,  History  of  the  Theory 
of  Sovereignty  since  Rousseau,  chap.  ix. 


288  POLITICAL  THEORIES 

ments  determined  by  the  collective  inhabitants  of  the 
individual  state,  or  by  the  total  population  of  all  the 
states?  There  was  no  more  decisive  answer  to  this 
question  in  the  American  system  than  there  was  to  the 
issue  between  princes  and  people  in  the  German. 

Waitz  said  in  discussing  the  league  of  states  {Staaten- 
hund)  that  the  only  significance  of  this  form  of  union  in 
history  was  that  it  commonly  was  a  step  in  the  transi- 
tion from  a  group  of  states  to  a  single  state.  The 
Bundesstaat  he  considered  to  have  in  it  more  of  the 
element  of  permanence  —  to  be  in  fact  a  distinct  and 
valuable  addition  to  the  forms  of  political  life.  There 
is  rather  more  indication  in  the  history  of  this  species 
of  union  down  to  the  present  time  that  it  is  as  unstable 
and  transitional  as  the  Staatenhund.  Its  role  has  clearly 
been,  in  America  and  Germany,  to  prepare  the  way  for 
the  advent  of  a  national  unitary  state,  with  a  federal 
government. 

7.   Conclusion 

The  foregoing  chapter  has  called  attention  to  the  dis- 
tinctive featm'es  of  constitutional  theory  on  the  Conti- 
nent till  well  past  the  middle  of  the  nineteenth  century. 
The  written  constitution  became  the  almost  universal 
form  of  fundamental  law.  As  to  the  character  and  con- 
tent of  it,  theory  on  the  legalistic  side  dealt  particularly, 
as  we  have  seen,  with  the  doctrine  of  sovereignty,  the 
function  of  the  monarch  and  the  nature  of  the  union- 
state. 

On  all  these  subjects  the  prevailing  thought  in  the 
theories  we  have  noticed  was  to  ignore  in  a  large 
measure  the  concept  state  and  concentrate  attention  on 


z' 


ABSOLUTE   POWER  EXCLUDED  289 

government.  Sovereignty,  in  the  sense  of  authority 
that  was  "supreme,  irresistible,  absolute,  uncontrolled," 
was  excluded  from  consideration,  or  altogether  from 
recognition  as  a  rational  idea.  No  determinate  human 
superior  such  as  the  English  Austm  had  msisted  on  was 
vv':.<,  thought  of  as  essential  to  government  that  was  truly 
constitutional.  The  French  liberals  and  Doctrinaires 
would  hear  of  nothing  but  reason  and  justice,  applied 
to  the  prescriptions  of  a  nicely  balanced  system  of 
checks  among  the  departments,  as  the  supreme  direct- 
ing power  in  political  life.  The  supporters  of  the 
-  monarchic  principle  claimed  for  the  piince  only  an 
indispensable,  not  an  absolute  authority;  monarch, 
people  and  representative  bodies  each  had  a  part  in  the 
government  as  determmed  by  the  constitution.  The 
expounders  of  the  union-state  showed  a  dual  govem- 
X  nient,  each  branch  of  which  was  restricted  to  a  sphere, 
whose  limits  the  constitution  must  be  depended  on  to 
make  clear. 

For  theoretical  as  well  as  practical  completeness  there 
was  required  in  each  of  these  systems  of  doctrine  some 
entity  on  which  the  various  elements  of  authority  could 
rest.  The  nice  balance  among  the  various  departments 
of  the  government,  even  when  the  royal  power  was 
added  to  the  older  elements  as  a  regulator,  could  not 
be  rationally  explained  as  existing  and  fmictioning  of 
itself  and  for  itself  m  France.  Prince  and  representa- 
tive, body  were  in  almost  every  state  of  Central  Europe 
in  strife  as  to  the  scope  of  their  respective  powers; 
neither  would  concede  the  right  of  the  other  to  partition 
the  disputed  field;   an  authority  with  competence  to 


290  POLITICAL  THEORIES 

determine  competence  was  inevitably  suggested.  In 
the  dual  government  of  the  Bundesstaat  the  situation 
was  very  much  the  same :  delimitation  of  the  respec- 
tive spheres  of  the  central  and  the  state  governments 
became  promptly  a  problem  in  both  theory  and  prac- 
tice. And  finally,  monarchy  and  union-state  ahke 
presented  always  the  fundamental  question  :  for  whom 
and  by  whom,  in  last  analysis,  is  the  complex  organiza- 
tion of  authonty  created  and  maintained  ? 

To  say,  as  was  in  fact  said,  that  a  sufficient  answer 
to  these  questions  must  be  found  in  the  constitution, 
was  but  to  carry  the  issue  one  step  further  back  and 
raise  the  controversy  as  to  the  source  and  end  of  the 
constitution.  To  evade  the  long  famihar  debate  over 
the  constituent  power  was  more  or  less  unconsciously 
always  in  the  minds  of  the  moderate  men  who  led 
in  the  poHtical  discussions  between  1815  and  1848. 
They  feared  to  ascribe  to  either  people  or  prince  so 
unrestricted  a  power  as  that  to  create  a  constitution. 
They  would  shut  their  eyes  to  the  very  human  motives 
and  passions  that  entered  into  the  formulation  of  a 
constitution  by  either  prince  or  assembly  of  representa- 
tives, and  would  assume  the  concrete  result  to  be  the 
expression  of  impersonal  reason  and  righteousness. 

This  attitude  had  been  the  normal  one  among 
the  expositors  and  eulogistc  of  the  unwritten  consti- 
tution. England,  the  example  par  excellence  of 
this  species,  was  assumed  to  have  developed  a  nearly 
perfect  political  system  through  the  operation  of  in- 
stitutions and  forces  unrecognized  and  uncontrolled 
by  the   conscious   intelligence    of   men.      The   Eng- 


NATION  MAKES   CONSTITUTION  291 

lish  nation  was  the  real  creator  of  the  system. 
In  like  manner,  it  was  felt,  the  written  constitutions 
that  came  forth  so  numerously  in  the  nineteenth  century- 
expressed  the  spirit  and  will,  not  of  the  delegates  or 
the  princes  who  formulated  them,  but  of  the  his- 
toric and  ethnic  aggregates  of  which  these  consti- 
tution-writers were  the  unconscious  organs.  Here, 
then,  was  to  be  found  the  real  and  ultimate  source  and 
interpreter  of  the  fundamental  law.  Neither  the  con- 
stitution nor  any  of  the  organs  defined  and  authorized 
by  it  was  the  last  element  in  the  political  series.  Be- 
hind all  the  definite  and  personal  elements  lay  in  every 
case  that  supra-human  and  impersonal  factor  that  was 
variously  called  "people"  (collective  and  abstract, 
not  distributive  and  concrete),  "state"  and  "nation." 
The  last  of  these  terms  became  in  the  first  half  of 
the  nineteenth  century  the  most  characteristic  of  the 
theory  which  we  are  indicating.  Side  by  side  with  the 
development  of  constitutionalism  in  political  philosophy 
the  conception  and  influence  of  nationality  received 
elaborate  investigation  and  assumed  much  prominence. 
The  theorizing  on  this  subject  must  now  be  considered. 

SELECT  REFERENCES 

BluntscUi,  GescMchte,  Kap.  17.  Brie,  Der  Bundesstaat,  Abth.  I. 
Bryce,  "Predictions  of  Hamilton  and  Tocqueville,"  in  Johns 
Hopkins  Studies,  Series  V,  No.  IX.  Calhoun,  Disquisition  on 
Government.  Constant,  Politique  constitutionelle,  Vol.  I,  chap, 
ii.  Guizot,  Representative  Govermnent  (translation),  Part  I, 
lects.  vi-viii;  Part  II,  lects.  x,  xv-xviii.  Jellinek,  Gesetz  und 
Verordnung,  Abth.  I,  Kap.  vii ;  Abth.  II,  Abschnitt  i,  and  Absch. 
ii,  Kap.  iv.  Tocqueville,  Democracy  in  America  (translation), 
I,  chaps,  iv-viii.  Treitschke,  Hist,  und  Pol.  Aufsdtze,  II,  109-191. 
Stahl,  Rechts-  und  Staatslehre,  Band  II,  Abschnitt  iii,  Kap.  12. 
Waitz,  Grundziige  der  Politik,  pp.  129-218. 


CHAPTER  VIII 

THE  THEORY  AND  PRACTICE  OF  NATIONALISM 

1.   The  Struggles  for  National  Independence  and  Unity 

From  the  American  Revolution  down  there  was 
continuously  manifest  in  the  larger  affairs  of  political 
life  the  influence  of  the  ideas  which  eventually  blended 
into  the  definite  concept  of  the  national  state.  The 
expression  of  these  ideas  w^as  for  the  most  part  either 
merely  visionary  and  sentimental  or  directed  to  some 
immediate  practical  end.  In  America  the  fervid  oratory 
of  Patrick  Henry  and  the  clever  pamphleteering  of 
Thomas  Paine  stirred  the  imaginations  with  the  sug- 
gestion of  unity  and  power,  while  the  sententious 
phrases  of  Jefferson  in  the  Declaration  of  Indepen- 
dence and  the  sober  warning  of  Hamilton  in  the 
Federalist,  "a  nation  without  a  national  government 
is  an  awful  spectacle,"  revealed  a  pretty  wide  and  deep 
understanding  of  the  doctrine  that  was  developing. 

In  France,  during  the  period  of  revolutionary  turmoil, 
the  idea  of  nation  was  hardly  distinguishable  from  that 
of  people.  Yet  here,  as  in  America,  a  practical  problem 
set  the  consciousness  of  a  distinction  in  a  clear  light. 
Under  the  theory  of  the  social  contract  a  people  was 
merely  a  group  of  individujils  united  by  an  agreement 
that  had  no  basis  save  in  the  free  choice  of  each  of  the 
individuals  concerned.    This  was  the  theory  of  the 

292 


DOES   FREE    CHOICE    MAKE    A   PEOPLE?        293 

revolutionary  leaders,  but  their  practice  showed  the 
influence  of  other  ideas.  In  America  it  was  not  by 
virtue  of  their  free  choice  that  Indians,  negroes  and 
loyalists  were  excluded  from  membership  in  the  new- 
born people  and  even  from  the  enjoyment  of  their 
natural  rights  as  men.  In  France,  after  the  establish- 
ment of  the  republic,  those  who  preferred  a  monarchy 
logically  ceased  to  be  Frenchmen.  In  practice,  how- 
ever, they  were  more  often  treated  as  bad  Frenchmen 
than  as  ahens.  And  this  was  a  recognition  of  their  own 
contention,  that  they  remained  Frenchmen  without 
reference  to  the  desire  of  any  number  of  their  fellows  to 
exclude  them  from  the  category. 

There  was  clearly  implied  in  these  facts  a  criterion  of 
membership  in  a  political  community  quite  distinct 
from  that  set  up  by  the  theory  of  the  social  contract. 
The  individual's  antecedents,  not  his  present  will, 
became  the  conclusive  test.  His  race,  his  color,  his 
language,  his  religion,  his  former  political  convictions 
—  all  entered  into  the  consideration.  Geography,  too, 
had  its  influence  in  the  matter.  In  La  Vendee  practi- 
cally the  whole  population  refused  to  associate  politi- 
cally with  the  Frenchmen  that  surromided  them.  But 
La  Vendee  was  one  of  the  old  provinces  of  France; 
hence  the  clearly  manifested  will  of  the  Vendeans 
received  no  recognition  from  the  authorities  of  the  re- 
public. In  America  the  people  of  Rhode  Island  mani- 
fested a  pronoimced  indisposition  to  come  into  the 
union  formed  by  the  Constitution  of  1789 ;  whereupon 
there  was  serious  talk  among  even  the  radical  popular- 
sovereignty  people  of  Massachusetts  and  Connecticut, 


294  POLITICAL  THEORIES 

to  the  effect  that  the  Rhode-Islanders  should  be  coerced 
into  the  desired  relations  with  the  rest  of  the  Americans. 

These  instances  in  the  procedure  of  the  peoples  who 
were  special  exponents  of  the  revolutionary  doctrine 
testified  to  the  prevalence  of  feelings  and  ideas  that 
greatly  qualified  the  principles  upon  which  the  revolu- 
tions were  supposed  to  be  based.  Something  more 
than  the  caprice  or  even  the  reasoned  preference  of 
indi\dduals  was  evidently  operative  in  fixing  the  limits 
of  a  normal  political  society. 

The  problems  here  involved  assumed  great  promi- 
nence through  the  transformations  of  the  political 
map  of  Europe  and  the  world  by  the  wars  of  French 
expansion  and  the  readjustments  that  followed  the 
downfall  of  Napoleon.  So  far  as  general  principle 
rather  than  immediate  expediency  was  appealed  to  in 
the  process,  the  French  professed  respect  for  the  popu- 
lar will  in  fixing  the  boundaries  of  states,  while  the 
Congress  of  Vienna  stressed  historical  and  tradi- 
tionary conditions.  Each  side,  however,  resorted 
often  to  the  principle  of  the  other,  and  the  settlement 
of  1815  was  followed  by  deep  and  bitter  dissatisfaction 
in  both  dynasties  and  peoples. 

In  the  negotiations  at  Vienna  the  doctrine  that  na- 
tionality should  be  the  basis  of  independent  statehood 
came  strongly  to  the  front  in  providing  for  the  future 
of  Poland,  Italy  and  Germany.  It  was  held  that  the 
Poles,  the  Italians  and  the  Germans  were  each  so 
homogeneous  racially  as  to  furnish  the  natural  material 
for  a  state.  The  eminent  Niebuhr  set  the  principle 
of  race  so  high  as  gravely  to  argue  that  Saxony,  in  stand- 


RACE   NATIONALISM  ACTIVE  295 

ing  by  Napoleon  after  all  the  other  Germans  had 
deserted  him,  had  been  guilty  of  treason  to  the  German 
race,  and  must  pay  the  penalty  in  loss  of  autonomous 
life.^  These  far-reaching  conceptions  of  national  rights 
did  not  show  any  appreciable  mfluence  in  the  territorial 
arrangements  actually  effected  at  Vienna;  but  Poles 
and  Italians  and  Germans  voiced  a  loud  chorus  of  pro- 
test against  the  violation  of  their  ideals,  and  never 
ceased  theii*  denunciation  till  it  had  produced  the  most 
important  results  in  both  theory  and  fact. 

The  revolt  of  the  Greeks  and  their  war  for  inde- 
pendence was  the  occasion  for  a  great  impulse  to  the 
cause  of  race  nationalism  on  sentimental  and  pseudo- 
historical  grounds.  For  a  generation  before  the  in- 
surrection broke  out  a  remarkable  propaganda  of  edu- 
cation had  been  carried  on  through  which  the  more 
intelligent  of  the  Greeks  were  trained  to  believe  that 
they  embodied  the  heritage  of  language,  spirit  and  gen- 
eral culture  that  had  been  transmitted  by  classic  Hellas. 
Liberals  of  Europe  and  America  eagerly  seized  this 
conception  of  the  modern  Greek,  and  saw  in  the  petti- 
coated  bandits  who  were  harrying  the  Turks  the  worthy 
posterity  of  Solon,  Lycurgus  and  Demosthenes.  En- 
thusiastic support  was  given  to  the  insurgents  by  pen 
and  purse  and  sword.    The  cause  of  the  Greeks  was 

'  Die  Gemeinsehaft  der  Nationalitat  ist  hoher  als  die  Stats- 
Verhaltnisse  welche  die  verschiedenen  Volker  eines  Stammes  ver- 
einigen  oder  trennen.  Diirch  Stammart,  Sprache,  Sitten,  Tradition 
und  Litteratur  besteht  eine  Verbriiderung  zwischen  ihnen,  die  sie 
von  fremden  Stammen  seheidet  .  .  .  Aus  diesem  Nationalitatsver- 
haltnisse  entstehen  die  Rechte  einer  Bundesversammlung,  oder 
ihres  Hauptes,  zu  achten,  wenn  ein  einzelner  Stat  der  Nation  untreu 
und  zum  Verrather  an  ihr,  im  Biindniss  mit  Fremden,  wird.  — 
Quoted  in  Bluntschli,  Geschichte,  p.  635. 


296  POLITICAL  THEORIES 

won,  indeed,  less  by  the  agitated  activities  of  their 
idealizing  friends  than  by  the  fleets  and  armies  of  those 
very  prosaic  politicians,  Nicholas  of  Russia,  Charles  X 
of  France  and  George  IV  of  Great  Britain.  Yet  more 
significant  for  the  future  than  the  work  of  these  mon- 
archs  was  the  spread  of  the  doctrine,  feared  and  de- 
tested by  all  of  them,  that  a  nation  was  morally  en- 
titled to  a  national  government. 

In  1830  the  Belgians,  who  had  been  yoked  up  with 
the  Dutch  by  the  Congress  of  Vienna,  asserted  and 
maintained  by  force  their  claim  to  national  inde- 
pendence. The  Poles  at  Warsaw,  in  the  following 
year,  fought  a  desperate  but  unsuccessful  fight  to  es- 
cape the  dominion  of  the  Czar.  Their  failure,  attended 
by  tales  of  ruthless  massacre  and  by  the  appearance  of 
swarms  of  exiles  throughout  western  Europe,  probably 
contributed  even  more  than  their  success  could  have 
done  to  the  spread  of  nationalistic  idealism. 

By  the  middle  of  the  century,  when  the  revolutionary 
drama  of  1848  was  mifolded,  nationalism  was  the  cen- 
tral force  in  the  whole  great  commotion,  outside  of 
France.  Even  Great  Britain  had  to  deal  with  the 
trouble-making  principle,  as  it  was  invoked  by  the 
malcontents  in  Ireland.  Middle  Europe,  from  the 
Baltic  to  the  Mediterranean,  was  a  seething  caldron 
of  nationalistic  aspiration.  In  most  cases  the  immedi- 
ate end  sought  was  the  release  of  a  self-conscious  people 
from  the  control  of  a  government  that  was  felt  to  be 
alien.  Along  with  this  went  a  wild  craving  for  the 
consolidation  of  hitherto  separate  conmiunities  of 
kindred  speech  into  a  single  political  system. 


NATIONALISM   IN   1848  297 

The  principalities  and  provinces  of  the  Itahan  penin- 
sula flamed  with  hatred  of  their  Hapsburg  and  Bourbon 
rulers,  drove  them  out,  and  groped  excitedly  about  for 
union  among  themselves.  But  the  time  of  Italian 
unity  was  not  yet,  and  when  the  tumult  and  the  shout- 
ing ceased  Italy  was  still  merely  what  Metternich  had 
called  it,  a  geographical  expression. 

Throughout  the  dominions  of  the  Austrian  Emperor 
almost  every  one  of  the  races  subject  to  him  struck  for 
some  kind  and  measure  of  national  autonomy.  The 
Czechs  at  Prague  demanded  a  revival  of  the  ancient 
realm  of  Bohemia.  The  Magyars  at  Buda-Pesth 
deposed  the  Hapsburger  from  the  throne  of  Hungary. 
The  Serbs  of  Croatia  set  up  the  standard  of  revolt 
against  the  Hungarians.  Here  again,  however,  the 
end  of  the  troubles  found  the  authority  of  the  House  of 
Hapsburg  practically  intact,  and  its  subjects  as  hetero- 
geneous as  ever. 

At  Frankfort,  in  the  assembly  that  convened  to 
frame  a  constitution  for  Germany,  centred  the  most 
important  of  the  nationalistic  movements  of  this 
time.  The  popular  demand  that  led  to  the  meeting  of 
the  convention  was  irresistible  both  from  its  diffusion 
and  its  intensity.  For  a  generation  the  growth  of  the 
idea  of  a  unified  and  powerful  Germany  had  been  re- 
markable from  both  the  sentimental  and  the  rational 
point  of  view.  History  and  fancy  had  combined  to 
reveal  or  construct  an  inspiring  past  of  the  German 
nation  and  its  heroes,  Arminius,  Charlemagne,  the 
Hohenstaufen  ;  and  prophetic  vision  depicted  a  future 
that  should  see  the  Teuton  again  moulding  the  Gaul 


298  POLITICAL  THEORIES 

and  Latin  to  his  will.  But  the  political  unity  of  the 
German  race,  on  which  this  vision  depended,  required 
the  dismemberment  of  the  Austrian  Empire  and  a 
notable  expansion  of  the  power  of  Prussia.  Neither 
of  these  requirements  could  be  secured  in  1849,  and  the 
work  of  the  Frankfort  assembly  went  to  shipwreck. 
Germany  became  again  a  disjointed  congeries  of 
political  units,  but  the  men  and  the  ideas  that  were 
destined  to  reaHze  the  national  desire  had  been 
revealed. 

The  ebullition  of  1848,  in  both  its  nationalistic  and  its 
constitutional  phases,  was  largely  controlled  by  senti- 
ment and  emotion.  An  influential  and  often  dominant 
part  was  played  by  orators,  poets,  literary  men  and 
professors.  Witness  Kossuth  in  Hungary,  Arndt  and 
Uhland,  Dahlmann  and  Waitz  at  Frankfort,  Lamartine 
in  France,  and  Mazzini  at  Rome.  Within  twenty 
years  after  the  failures  of  these  men  the  principle  of 
nationality  achieved  the  wonderful  triumphs  manifest 
in  a  unified  Italy,  a  imified  Germany,  and  a  unified 
United  States ;  but  the  men  most  responsible  for  these 
results  were  of  a  different  type  from  the  leaders  of  1848. 
Louis  Napoleon,  Otto  von  Bismarck,  Camillo  di  Cavour 
and  Abraham  Lincoln  were  hard-headed  politicians, 
whose  methods  subordinated  the  ideal  and  sentimental 
to  the  practical.  Hence  the  nationalism  exhibited  in  the 
results  of  their  work  was  hard  to  reconcile  at  some  points 
with  the  doctrine  of  the  earlier  days.  The  German 
nation  that  Bismarck  consolidated  included  many 
Germans  who  bitterly  opposed  his  procedure,  and  left 
out  the  great  masses  of  Germans  who  were  subject  to 


NATIONALISM   BECOMES  AGGRESSIVE  299 

the  Austrian  Emperor.  The  United  States  that  Lin- 
coln left  included  millions  of  Americans  who  had 
fought  a  bloody  war  to  free  themselves  from  his  govern- 
ment. In  the  earlier  conception  of  a  nation  it  was  the 
expression  of  the  popular  consciousness  and  will.  In 
the  conception  that  prevailed  in  the  German  and  the 
American  development  nationality  became  an  instru- 
ment of  aggression  and  was  used  to  justify  the  over- 
riding of  popular  desires.  Where  race,  geography 
and  history  were  held  to  have  decreed  that  there  must 
be  a  single  people  under  a  single  government,  no  ad- 
verse choice  or  preference  of  any  fraction  of  the  people 
was  allowed  to  prevail. 

From  this  position  the  advance  was  easy  to  the  con- 
ception of  a  nation's  duties  externally,  as  the  supple- 
ment to  its  rights  internally.  Its  spirit  and  culture 
must  be  projected  into  the  uttermost  parts  of  the 
earth.  Whatever  inferior  nations  refused  to  profit  by 
their  opportunities  must  be  forced  to  do  so.  Thus 
nations  in  the  modern  world  became,  like  mere  dynas- 
ties and  despots  in  the  older  time,  ruthless  rivals  for 
the  endless  extension  of  their  power. 

2.   Theory  of  the  State  as  Sovereign  Person 

While  soft  idealism  and  hard  practical  politics  were 
cooperating  to  produce  the  results  just  considered,  ra- 
tional theory  labored  conscientiously  to  set  the  nation 
in  its  proper  niche  in  the  structure  of  political  science. 
The  doctrines  that  were  developed  as  to  the  nation  had 
a  close  relation  to  the  concept  of  the  state  that  was  most 
characteristic  of  the  mid-nineteenth  century.    A  con- 


300  POLITICAL  THEORIES 

sideration  of  this  concept  affords  the  best  line  of  ap- 
proach to  the  theory  of  nationahsm. 

It  is  in  the  scientific  Hterature  of  the  Germans  that 
the  most  important  contributions  to  the  theory  of  the 
state  are  to  be  found.  The  practical  problems  of 
parliamentary  government  absorbed  the  attention  of 
thinking  men  in  Great  Britain  and  France.  The  Brit- 
ish were  satisfied  to  accept  the  complacent  optimism  of 
the  Whigs  or  the  ethical  dogmas  of  the  Utilitarians  as 
an  adequate  substitute  for  a  real  theory  of  the  state. 
The  French  still  feared  to  confront  again  the  conse- 
quences of  pushing  the  theories  of  1789  to  their  logical 
limits,  and  the  peculiar  faculty  of  the  Gallic  mind  for 
exact  analysis  and  well-articulated  synthesis  was  di- 
verted to  the  newly  opened  fields  of  socialism  and 
sociology. 

German  theory  as  to  the  nature  of  the  state  followed, 
through  the  middle  of  the  nineteenth  century,  the  chan- 
nels into  which  it  had  been  directed  chiefly  by  the  genius 
of  Hegel.  As  we  have  seen,^  his  system  combined  the 
conclusions  of  a  transcendental  metaphysics  with  those 
of  a  wide  ranging  over  the  field  of  concrete  human  his- 
tory. These  two  elements  fixed  the  character  of  all 
the  post-Hegelian  speculation  in  Germany  as  to  what, 
in  last  analysis,  is  meant  by  the  term  state.  Out  of  the 
metaphysical  and  psychological  phases  of  the  specula- 
tion developed  the  dogma  that  the  state  must  be  con- 
ceived as  essentially  a  person.  From  a  similar  source 
arose  the  doctrine  that  the  state  must  be  regarded  as 
an  organism.    Both  the  theory  of  personality  and  the 

^  Supra,  chap,  iv,  sec.  4. 


HISTORY  AND  MONARCHY  301 

organismic  theory,  permeated  as  they  were  with  the 
idea  of  life  and  growth,  promoted  the  historical  ap- 
proach to  the  realities  of  political  phenomena.  His- 
tory, just  taking  scientific  form  through  Ranke  and 
his  school,  became  of  such  importance  as  to  figure 
not  only  as  an  instrument  in  discovering  the  founda- 
tions of  the  state,  but  even  as  a  determining  ele- 
ment in  the  concept.  The  historical  theory  of  the 
state  took  its  place  by  the  side  of  the  transcendental 
and  the  organismic,  and  played  a  part  with  them  in 
shaping  the  conceptions  of  nationalism. 

The  practical  politics  of  Central  Europe  operated 
to  determine  the  concept  of  the  state  as  it  did  to  in- 
fluence the  theory  of  the  constitution.^  Monarchy, 
though  not  absolute,  had  to  be  regarded  as  the  histori- 
cally indicated,  if  not  the  logically  indispensable,  form 
of  government  for  the  modern  state.  Prince  and 
people  were  in  the  body  politic  as  head  and  members. 
Monarchic  theorists  did  not  reject  the  idea  that  will 
was  of  the  essence  of  the  state.  They  denied,  however, 
that  the  will  of  the  state  could  take  form  or  find  ex- 
pression through  the  aggregate  of  individuals  known 
as  the  people  (Volk).  The  state,  as  an  embodiment  of 
will,  could  properly  be  said  to  have  personality ;  but 
this  character  could  be  manifested  only  in  an  actual 
physical  person  —  the  monarch.  Thus  the  prince 
personified  the  state ;  and  the  theory  had  strong  sup- 
port that  there  could  be  no  valid  concept  of  the  state 
as  endowed  with  will  or  other  attributes  of  personality 
unless  its  chief  organ  should  be  a  living  physical  person. 
^  Supra,  chap,  vii,  pp.  252  et  seq. 


302  POLITICAL  THEORIES 

This  adaptation  of  the  conception  of  the  state  as 
person  to  the  special  service  of  the  monarchic  party 
stimulated  the  liberals  and  republicans  to  the  develop- 
ment of  a  doctrine  more  favorable  to  their  cause.  They 
held  that  the  state  in  and  of  itself  was  person,  quite 
wdthout  reference  to  the  organ  through  which  its  will 
and  power  were  manifested;  that  these  attributes 
and  all  the  others  —  feeling,  purpose,  conscience,  etc. 
—  that  characterize  a  moral  being  were  predicable 
immediately  of  an  aggregation  of  human  beings  in 
the  same  sense  as  of  a  single  human  being.  Since 
these  attributes  constitute  personaHty,  the  state,  it 
was  argued,  whatever  the  form  of  its  government,  is 
in  the  strict  sense  of  the  term  a  person. 

The  speculation  and  debate  over  such  theories  ob- 
viously involved  extensive  ramblings  in  the  fields  of 
metaphysics  and  psychology.  Not  less  necessary, 
in  course  of  time,  became  resort  to  the  broad  domain 
of  objective  history.  "Person"  had  to  be  defined  by 
the  psychologist's  analysis ;  Volk  had  to  be  traced  to 
its  germ  by  the  investigations  of  the  historian.  More 
or  less  as  a  by-product  of  this  double  process  in  reach- 
ing the  conception  of  the  state  as  person,  the  idea  of 
the  nation  forced  its  way  irresistibly  into  the  foreground 
of  the  discussion.  Before  taking  up  this  idea  for  closer 
analysis,  however,  let  us  consider  more  concretely 
some  of  the  conspicuous  theories  of  state  personality. 

Hegel's  striking  doctrine  as  to  the  development  of 
the  state  in  histoiy  stressed,  as  we  have  seen,^  the  at- 
tribute   of   self-consciousness    in    the   people    (Volk). 

1  Supra,  pp.  160,  164. 


STATE   AS   SELF-CONSCIOUS  PERSON  303 

The  idea  received  at  the  hands  of  Schleiermacher  also 
an  influential  exposition.^  A  state,  he  held,  was  the 
form  of  a  people's  life,  and  came  into  existence  when 
and  so  far  as  a  consciousness  of  unity  pervaded  the 
multitude  and  rendered  its  social  activities  reasoned 
rather  than  instinctive.  The  normal  succession  of 
forms  of  government  in  history,  as  Schleiermacher 
saw  it,  was  from  monarchy  through  aristocracy  to 
democracy  —  an  order  that  illustrated  the  widening 
diffusion  of  political  consciousness. 

These  views  brought  psychological  analysis  into 
close  relation  with  the  concept  state  and  people,  but 
still  left  the  elements  of  personality  in  the  individual 
members  of  the  commmiity  rather  than  in  the  aggregate. 
Thinkers  of  a  juristic  habit  of  mind  regarded  the  an- 
cient de\dce  of  a  fictitious  personality  through  which  a 
corporation  had  legal  life,  as  an  adequate  basis  for  the 
ascription  of  moral  attributes  to  a  people  or  a  state. 
But  the  unmistakably  predominant  tendency  of  the 
time  was  away  from  every  doctrine  that  made  state  or 
people  the  product  of  human  creative  power.  Grant- 
ing that  a  corporation  was  a  creature  of  the  human  will, 
to  compare  the  state  to  it  would  be  to  yield  the  whole 
claim  of  Rousseau  and  the  revolution.  Recourse  was 
therefore  increasingly  had  to  theorizing  that  cate- 
gorically assigned  the  characteristics  of  the  individual 
person  to  a  collection  of  individuals,  and  eventually  so 
defined  personality  as  tomakeitpredicable  indifferently 
of  a  monarch,  of  a  people  and  of  that  which  includes 

1  Schleiermacher,  Werke,  Band  32.     Cf.  Bluntschli,  Geschichte, 
p.  668  et  seq. 


304  POLITICAL  THEORIES 

both,  a  state.  When  this  was  achieved,  a  broad  high- 
way was  opened  to  those  who,  fearful  of  sovereignty 
in  either  piince  or  people,  could  proceed  comfortably 
in  the  assurance  that  the  dreaded  power  lay  in  the 
combination  of  the  two,  that  is,  the  state. 

The  historical  school  of  German  political  science 
contributed  much  to  the  development  of  the  doctrine 
under  consideration.  Then-  special  service  was  to 
define  the  concept  "people"  (Volk).  Savigny,  whose 
distinction  and  preeminence  in  historical  jurisprudence 
covered  half  the  nineteenth  century,^  made  this  con- 
cept the  whole  foundation  of  his  philosophy  of  law. 
A  people,  as  he  defined  it,  is  an  aggregation  of  individ- 
uals living  a  definitely  indicated  kind  of  life  and  per- 
meated by  a  common  spirit  {geistigen  Gemeinschaft) . 
This  spirit  (Volksgeist)  lives  and  acts  in  every  indi- 
vidual, but  is  distinct  from  the  will  and  the  right  of 
the  individual.  The  most  obvious  manifestation  of 
the  common  spirit  is  the  language  of  the  people. 
Not  less  significant  is  its  law  (Recht).  Chiefly  by 
the  transmission  of  the  common  language  and  law 
from  one  generation  to  another  a  people  maintains 
its  existence  and  its  unity  through  the  centuries.  It 
tends  always  and  irresistibly  to  reveal  its  inner  and 
invisible  spirit  in  outward  and  visible  form,  and  this 
form  is  the  state.  In  the  state  a  people  attains  to 
true  personality  and  the  power  to  act.  All  the  dogmas 
as  to  the  creation  of  the  state  by  and  for  the  indi- 
vidual are  baseless.     According  to  nature  the  state 

^Bom  1779,  died  1861.      Cf.  sketch  in  Bluntschli,  Geschichte, 
p.  623. 


THE   STATE   AS  PERSON  305 

has  its  origin  in  a  people,  through  the  people  and  for 
the  people.^ 

Dahlmann,  the  equally  distinguished  and  influen- 
tial contemporary  of  Savigny,  laid  like  stress  on  the 
historical  development  of  a  people,  but  conceived  the 
state  as  a  species  of  physical  and  spiritual  personality 
that  might  be  something  more  than  the  mere  form  of  a 
people.  A  people  often  became  merged  into  a  popula- 
tion (Bevolkerung) ,  but  the  state  did  not  therefore  cease 
to  exist  .^ 

This  same  tendency  to  give  the  state  an  independent 
personahty  appeared  in  the  work  of  Georg  Waitz, 
another  famous  historical  scholar  of  the  mid-nineteenth 
century.  The  climax  of  this  movement  of  speculation, 
however,  was  exhibited  in  the  philosophy  of  F.  J.  Stahl 
(1802-1861)  and  especially  that  of  J.  K.  Bluntschli 
(1808-1881). 

Stahl's  system  as  a  whole  was  in  the  spirit  of  the  old 
dogmatic  theology,  often  obscurantist  in  trend,  but 
manifesting  at  many  points  notable  force  and  acute- 
ness.^  The  state  he  classes  at  the  outset  as  one  species 
of  what  he  calls  the  ethical  realm  {das  sittliche  Reich). 
By  this  term  he  means  conscious,  unified  government, 
directed  by  moral  and  intelligent  purpose,  over  conscious 

1  " .  .  .  der  Staat  urspriinglieh.  und  naturgemass  in  einem  Volk, 
dureh  das  Volk,  und  f  tir  das  Volk  entsteht."  —  System  des  Romischen 
Rechts,  Buch  I,  Kap.  ii,  sec.  10.  Savigny  here  points  out  that  the 
idea  that  the  state  originates  in  the  will  of  the  individual  is  due 
in  part  to  the  confusion  of  various  senses  of  the  word  Volk. 

2  Dahlmann,  Die  Politik,  sees.  6,  7. 

'  His  systematic  and  exhaustive  work  is  the  Rechts-  und  Staats- 
lehre  auf  der  Grundlage  christlicher  Weltanschauung,  in  two  vols. 
The  Staatslehre  is  in  the  second  volume,  of  which  the  third  edition 
appeared  in  1856. 


306  POLITICAL  THEORIES 

and  freely-obeying  beings,  who  by  this  government  are 
made  a  spiritual  unity.  Such  is  the  authority  that  is 
manifested  in  the  kingdom  of  God ;  and  such  is  the  civil 
order  among  men.  In  authority  so  conceived  Stahl  sees 
the  dominion  of  personal  character,  and  the  state  be- 
comes thus  to  him  a  realm  of  personality.  That  is  to 
say,  the  government  {Herrschaft)  is  self-conscious,  self- 
controlled  and  possessed  of  real  power  over  men.  The 
social-ethical  world-order  is  not,  as  lq  Fichte  and  Kant, 
a  rule  or  law  to  which  personalities  conform,  but  is  itself 
a  personality  that  comprehends  and  unifies  them  all.^ 
When  Stahl  emerges  from  the  cloudland  of  his  meta- 
physics his  state,  with  all  its  halo  of  ethical  personality, 
assumes  the  familiar  form  of  the  German  constitutional 
monarchy.  It  is  the  union  of  a  people  under  a  govern- 
ing authority  (Obrigkeit),  the  natm-al  but  not  necessary 
form  of  which  is  a  physical  person.  The  end  of  this 
union  is  to  fulfil  the  life-purpose  of  the  conmiunity, 
not  of  the  individual ;  and  to  realize,  so  far  as  can  be 
done  by  the  ways  of  law  {Recht),  the  social-ethical 
{sittlich)  ideas  inherent  in  the  people.  The  common 
moral  consciousness  of  the  community  {sittliche  Gemein- 
gesinnung)  is  the  basis  on  which  the  legal  and  polit- 
ical institutions  rest.  The  will  of  the  people  (Volks- 
wille)  may  rightly  be  said  to  determine  the  existence 
of  the  state ;  but  this  is  true  only  if  by  the  will  of  the 
people  is  understood,  not  any  product  of  individual 
wills,  but  an  original  spiritual  (Geistliche)  element  that 
permeates  all  the  individuals  and  determines  their  wills.* 

lOp.  cit.,  Band  II,  Efnleitung. 

2  A  single  formidable  setitence  sums  up  weU  Stahl's  ideas  as  to 


BLUNTSCHLI   ON   PERSONALITY  307 

The  vague  and  mystical  element  in  Stahl's  thought,  as 
illustrated  by  this  conception  of  the  will  of  the  people, 
has  little  if  any  place  in  the  doctrine  of  Bluntschli. 
Whether  for  better  or  for  worse  this  latter  philosopher 
makes  his  idea  of  the  personality  of  the  state  immistak- 
ably  clear  and  comprehensive.  His  point  of  view  is 
juristic  rather  than  metaphysical,  rechtUch  rather  than 
geistlich.  Law,  right  and  rights,  as  all  expressed  in  the 
single  word  Recht,  he  asserts  to  pertain  only  to  self- 
conscious  and  self-motivated  (selbstthdtige)  bemgs.  But 
self-consciousness  and  determining  volition  are  the 
distinctive  characteristics  of  a  person,  as  set  off  from 
an  animal  or  a  mere  thing.  Therefore,  to  be  Rechts- 
fdhig  or  Rechtssuhjekt  —  to  be  capable  of  participating 
in  relations  involving  law,  right  and  rights  —  is  to  have 
personaHty,  to  be  a  person.  A  human  being  is  a  per- 
son because  such  relations  constitute  the  core  of  his 
life  (Lehensordnung) .    But  a  multitude  of  human  beings 

the  importance  and  inner  significance  of  the  state  :  "  Die  Einigung 
der  Menge  zu  Einer  geordneten  Gemeinexistence  —  die  Aufricht- 
ung  einer  sittlichen  Autoritat  und  Macht  mit  ihrer  Erhabenheit 
und  Majestat  und  der  Hingebung  der  Unterthanen  —  die  Lebens- 
befriedigung,  die  nicht  den  Menschen  vereinzelt,  sondern  der  Nation 
und  den  Menschen  nur  in  der  Nation  gewahrt  wird,  namentlich  das 
Bewusstzein  und  das  hebende  Gef  iihl,  diesem  geordneten  Gemein- 
wesen  und  dieser  Nation  mit  ihrer  geistigen  Bedeutsamkeit  anzuge- 
horen  —  das  eigenthiimliche  Ethos,  das  nicht  im  sittlichen  Leben, 
in  Erf  iillung  des  Gebotes,  sondern  in  sittlicher  Herrschaft,  in  Einsetz- 
ung  und  Handhabung  des  Gebotes,  in  Verwirklichung  der  sittlichen 
Herrsoherideen,  der  Macht,  der  Weisheit,  der  Gerechtigkeit  besteht 

—  das  sind  die  Charaktere  die  das  innerste  Wesen  des  Staates 
ausmachen  und  die  ihren  Grund  und  ihre  Bedeutung  nicht  im 
EinzeUeben,  sondern  nur  im  menschlichen  Gesammtdasein  haben." 

—  Op.  ciL,  II,  p.  134. 

The  implications  of  this  passage  throw  a  rather  interesting  light 
on  Stahl's  disparagement  of  Hegel,  and  especially  of  the  later 
Hegelians,  for  having  promoted  the  apotheosis  of  the  state.    P.  140. 


308  POLITICAL  THEORIES 

may  fall  literally  in  the  same  category;  the  order  of 
its  existence  may  be  exclusively  determined  by  rela- 
tions of  law,  right  and  rights.  Such  is  the  case  when 
the  multitude  is  so  organized  and  coherent  as  to  form  a 
state.  It  then  possesses  self-consciousness,  intelligence 
and  will,  and  is  a  person  in  precisely  the  same  sense  in 
which  the  individual  is  a  person.^ 

Bluntschh  takes  the  utmost  pains  to  make  it  clear 
that  the  collective  person  (Gesammtperson)  is  not  a 
legal  fiction  or  a  figure  of  speech.^  A  people,  he  main- 
tains, has  a  self-conscious  spirit  and  will  that  is  some- 
thing distinct  from  either  the  sum  or  the  majority  of 
the  wills  of  its  component  individuals.  It  has  further, 
in  its  institutions,  a  body  (Korper)  that  confirms  its 
existence  and  manifests  its  will.  Thus  the  spirit  of  a 
people,  taken  in  combination  with  its  political  institu- 

^  The  fullest  exposition  of  Bluntsehli's  views  on  these  subjects 
is  in  various  essays  in  his  Kleine  Schriften,  especially  the  first 
volume,  "  Aufsatze  iiber  Recht  und  Stat." 

In  translating  the  word  Recht,  in  the  text  above,  I  have  deliber- 
ately used  the  clumsy  expression  "  law,  right  and  rights  "  because 
Bluntschli  employs  the  term  without  discrimination  to  designate 
what  is  meant  in  English  by  any  one,  any  two,  or  all  three  of  those 
words.     A  shotgun  rendering  is  most  likely  to  hit  his  meaning. 

*  As  a  picture  is  something  more  than  a  collection  of  oil  and 
colors,  and  a  poem  something  more  than  a  collection  of  verses,  and 
a  country  something  more  than  the  sum  of  certain  areas  of  land  and 
water,  and  a  tree  something  more  than  an  aggregate  of  plant  cells, 
so  a  people  is  something  more  than  a  multitude  of  human  beings. 
Kleine  Schriften,  I,  297. 

This  species  of  analogical  argument  is  repeatedly  employed  with 
much  effect  by  Bluntschli  in  support  of  his  doctrine  as  to  the 
relation  of  the  unit  and  the  aggregate.  He  apparently  ignores 
altogether  the  important  fact  that,  while  a  human  being  is  self- 
conscious  and  in  some  measure  at  least  self-determining,  a  plant-cell 
or  a  poet's  verse  is  not.  Such  a  difference  may  conceivably  vitiate 
the  analogy  between  the  aggregates. 


THE   STATE   A   REAL  PERSON  309 

tions,  constitutes  an  entity  in  which  the  elements  of 
personality  are  in  the  strictest  sense  real.^ 

The  discovery  and  scientific  development  of  this 
tmth,  that  the  state  is  a  real  person,  Bluntschli  consid- 
ered one  of  the  great  services  of  the  Germans.  The 
RomanS;  themselves  no  mean  politicians,  had,  he  said, 
a  dim  uncertain  perception  of  the  truth,  but  lacked  the 
scientific  insight  to  ferret  out  its  full  significance.  To 
round  out  the  concept  to  completeness  Bluntschli 
proceeded  to  ascribe  to  the  state  as  person  even  the 
attribute  of  sex.^  If  the  state,  he  reasoned,  has  truly 
the  characteristic  attributes  of  the  human  person,  we 
cannot  blink  the  primary  classification  of  human  beings 
into  male  and  female,  and  we  must  find  in  which  of 
these  classes  the  state-person  belongs.  The  conclusion 
reached,  through  processes  strangely  fantastic  for  a 
writer  who  was  merciless  toward  "ideologues,"  was 
that  the  state  is  the  male,  while  the  qualities  distinc- 
tive of  the  female  are  to  be  found  in  the  other  great 
aggregate-person  of  human  society,  the  church. 

This  grotesque  extension  of  the  personality  doctrine 
brought  much  ridicule  upon  Bluntschli  and  sensibly 
impaired  the  influence  of  his  general  political  theory. 
He  held  tenaciously  to  his  fanciful  idea,  however,  and 

^  "  In  dem  Volke  waltet  und  ist  lebendig  ein  Gemeingeist  und  ein 
bestimmter  Gesammteharakter,  und  das  Volk  hat  in  seinen  In- 
stitutionen  sich  aueh  einen  Korper  geschaffen,  welelier  sein  Wesen 
bethatigt,  und  seinen  Willen  offenbart.  Das  Gesetz,  die  Politik  des 
States,  die  Verwaltung,  die  Rechtspflege  sind  alle  nur  zu  verstehen 
aus  diesem  Volksgeist  und  Statskorper,  nur  aus  der  Personliehkeit 
des  Stats."  —  Kleine  Schriften,  I,  99. 

2  Ibid.,  the  essay  entitled  "  Der  Stat  ist  der  Mann,"  esp.  pp.  283 
et  seq. 


310  POLITICAL   THEORIES 

left  it  in  place  in  his  last  revision  of  his  great  systematic 
work.^  With  due  allowance  for  the  perversion,  how- 
ever, his  exposition  of  the  concept  of  the  state  as  person 
was  as  lucid  and  cogent  as  any  ever  published.  Wliile 
he  did  not  always  make  it  clear  whether  personality 
was  an  attribute  primarily  of  people  or  of  state,  he 
never  left  a  doubt  that  it  was  an  attribute  of  a  people 
that  had  become  a  state.  His  ultimate  formula  for 
the  concept  of  the  state  was  this :  "An  aggregation  of 
men  united,  as  government  and  subjects  on  a  definite 
territory,  into  a  social-ethical,  organic,  masculine  per- 
sonality." ^ 

With  the  idea  that  the  state  or  people  was  a  person 
developed  ipari  passu  the  broader  conception  of  an 
organic  life  expressed  in  every  social  group.  This 
particular  doctrine,  while  manifest  in  the  speculation 
of  Bluntschli  and  others  as  to  the  state,  received  its 
chief  development  in  the  philosophy  of  society  and  in 
the  sociological  treatment  of  politics.  The  doctrine  of 
group  personaHty,  on  the  other  hand,  continued  to  have 
much  influence  on  those  who  viewed  the  state  from  the 
point  of  view  of  public  law.^    In  both  kinds  of  specula- 

1  See  his  Allgemeine  Staatslehre,  5te  Auflage,  1875,  Buch  I, 
Kap.  i,  7, 

2 " ,  ,  .  eine  Gesamtheit  von  Menschen,  in  der  Form  von 
Regierung  und  Regierten  auf  einem  bestimmten  Gebiete  verbunden 
zu  einer  sittlicb-organischen,  mannlichen  Personlichkeit.  Oder 
kiirzer  ausgedriiekt :  Der  Staat  ist  die  politiseh  organisierte  Volks- 
person  eines  bestimmten  Landes."  —  Ibid.  It  is  noteworthy  that 
in  the  first  of  these  two  forms  the  thought  seems  to  attach  per- 
sonality to  the  state,  while  in  the  second  the  person  is  rather  the 
people  {Volksperson). 

5  Jellinek,  for  example,  pointed  out  that  in  the  material  world 
a  collection  of  molecules  becomes  a  unit  —  an  individual  thing  — 
only  when  man  thinks  of  it  as  involving  purpose  or  end  (Zweck). 


NATION   AND   PEOPLE  311 

tion  the  centre  of  interest  was  the  people  as  a  group 
rather  than  any  individual  person,  whether  monarch 
or  subject.  Such  was  the  situation  in  the  field  of  theory 
when  the  excitmg  events  of  practical  politics  in  the 
third  quarter  of  the  nineteenth  century  demanded 
close  attention  to  the  relation  of  people  and  state  to 
the  concept  of  nationality. 

3.   The  Nation  as  a  Unit  of  Race  and  Language 

The  term  "nation"  was  m  use  in  all  West-European 
languages  from  the  days  of  Rome ;  but  the  importance 
of  fixing  its  meaning  with  precision  as  a  term  of  political 
science  became  obvious  only  in  the  revolution  time  of 
the  late  eighteenth  century.  Ordmary  usage  made  no 
nice  discrimination  between  "nation"  and  "people." 
When  circumstances  brought  into  practice  the  dogma 
that  political  authority  had  its  source  exclusively  in  the 
people,  it  was  a  pressing  necessity  to  determine  what 
was  meant  by  the  people.  Likewise  when,  as  a  conse- 
quence of  the  wars  precipitated  all  over  Europe  by  the 
revolution,  a  reconstruction  of  governments  to  corre- 
spond to  national  needs  was  demanded,  the  concept 
nation  had  to  be  considered  with  care. 

All  through  the  history  of  political  theorj^  we  have 
seen  distinctions  of  race  presented  as  the  causes  and 

A  brick  is  a  unit  only  by  virtue  of  our  perception  of  the  end  for  which 
that  aggregate  of  particles  exists.  Likewise  a  collection  of  men 
is  a  unit  in  the  same  sense  through  the  ascription  to  it  of  a  definite 
end  or  purpose,  by  which  every  individual  in  it  is  determined. 
Such  a  unity  is  a  person  just  as  soon  as  it  possesses  an  organ  for  the 
expression  of  its  will.  There  is  in  this  idea  of  person  no  fiction,  no 
mystery,  but  merely  the  application  of  the  ordinary  teleological 
process  of  human  thinking.     Gesetz  und  Verordnung,  193  et  seq. 


312  POLITICAL  THEORIES 

sufficient  explanations  of  distinctions  in  institutions 
and  power.  The  Greeks,  the  Romans,  the  Teutons  all 
left  copious  records  of  their  conviction  that  their  re- 
spective achievements  were  due  to  the  qualities  in- 
herent in  a  peculiarly  gifted  blood.  After  the  passing 
of  Rome  the  partition  of  the  civilized  world  between 
Christian  and  Mohammedan  found  a  similar  explana- 
tion in  the  genealogies  of  the  patriarchs  that  figured 
in  the  sacred  writings  of  both  creeds.  When  the 
medieval  monarchies  began  to  appear  on  the  soil  of 
the  Carolingian  empire  their  virtues  were  laboriously 
imputed  by  myth  and  legend  to  the  heroic  stock  from 
which  i-ulers  or  people  or  both  had  sprmig.-^  From  feudal 
times  this  racial  explanation  of  political  phenomena  was 
transmitted  to  the  modern  era.  A  nation  was  thought 
of  as  a  population  of  substantially  a  common  blood. 

The  eighteenth  century,  however,  was  too  sophisti- 
cated to  accept  the  idea  literally.  The  mixture  of 
races  in  every  people  of  Europe  was  one  of  the  most 
familiar  facts  of  history.  A  more  acceptable  criterion 
of  identity  as  a  nation  was  accordingly  found  in  lan- 
guage. On  the  basis  of  sameness  or  diversity  of  speech, 
it  was  held,  nations  were  distinguishable  as  nature  it- 
seK  had  divided  them,  quite  without  reference  to  the 
will  of  man. 

A  systematic  and  powerful  expression  of  this  species 
of  doctrine  was  embodied  by  Fichte  in  his  famous 
Addresses  to  the  German  Nation.^    In  maintaining  that 

'  For  the  French  derivation  from  the  Trojans  see  Political 
Theories,  Ancient  and  Medieval,  p.  225.  A  similar  ancestry  for  the 
English  is  the  theme  of  Geoffrey  of  Monmouth  and  Layamon. 

*  Supra,  p.  145. 


LANGUAGE   AND   MEN  313 

the  Germans  were  superior  to  the  other  branches  of  the 
Teutonic  stock  he  laid  much  weight  on  the  purity  of 
their  language  as  compared  with  those  that  had  been 
blended  with  the  Celtic  and  Latin.  Men,  he  argued,  are 
shaped  by  language  more  than  language  by  men.  The 
spiritual  development  (Geisteshildung)  of  a  group  loses 
both  unity  and  force  when  alien  elements,  of  un- 
familiar connotation,  enter  freely  into  its  speech.^ 
Particularly  destructive  of  a  truly  national  life  is  the 
incorporation  of  a  dead  language  into  the  usage  of  a 
people.  Words  and  idioms  that  have  ceased  to  repre- 
sent the  thoughts  of  living  men  will  inevitably  intro- 
duce a  morbid  element  into  the  spirit  (Geist)  of  those 
that  restore  them  to  service.  Fichte  finds  in  this  doc- 
trine the  ground  of  his  conviction  that  the  Germans  are 
of  a  sounder  national  life  than  the  Latinized  peoples  of 
Europe. 

Language,  however,  while  of  high  significance  in  the 
concept  of  the  nation,  was  not,  in  Fichte 's  analysis,  the 
essence  of  the  matter.  For  this  he  had  recourse  to  his 
idealizing  philosophy.  Human  life  means  but  the 
development  of  the  primordial  (Ursprunglich)  and  di- 
vine. This  process  is  various  in  its  manifestation. 
Where  a  society  of  men  reveals  in  its  natural  and  spirit- 
ual life  the  progressive  development  of  the  divine  in 
accordance  with  some  special  law,  there  is  a  nation 
(Volk).^    The   common   participation   in  this  special 

*  Humanitdt  and  Popularitat,  for  example,  he  says  mean  nothing 
at  first  sight  to  the  uncultivated  German,  and  the  meaning  they 
eventually  acquire  has  in  it  something  aUen,  distorted  and  uncon- 
genial to  the  German  character.  But  Menschenfreundlichkeit  and 
Leutseligkeit  would  make  at  once  an  identical  appeal  to  all  Germans. 

2  Fiehte's  formal  definition  of  Volk  is  this :    "  das  Ganze  der  in 


314  POLITICAL  THEORIES 

law  is  what,  in  last  analysis,  unites  the  individuals  into 
a  natural  whole.  The  content  of  this  law  defines  the 
national  character.  A  nation,  thus,  is  in  Fichte's 
view  a  mode  in  the  manifestation  of  the  primordial, 
the  divine,  the  eternal,  —  The  Absolute. 

That  there  was  little  in  this  conception  to  inspire  men 
to  fight  for  independence  was  not  concealed  from  the 
philosopher.  He  united  with  his  abstractions,  there- 
fore, a  more  practical  appeal,  though  not  one  that 
could  be  called  frivolous.  Only  the  noble-minded 
(edeldenkende)  among  men,  he  declared,  are  of  concern 
in  the  poHtical  life ;  and  it  is  peculiarly  characteristic 
of  the  noble-minded  to  long  for  immortahty.  To 
incorporate  their  personalities  by  word  or  deed  in  the 
eternal  (Ewig)  is  a  controlling  desire  of  their  lives. 
Hence  their  devotion  to  the  social  and  spiritual  order 
in  which  their  Hves  are  lived ;  for  the  nation,  in  which 
this  order  is  expressed,  is  the  reahzation  and  the  guar- 
antee of  the  immortahty  they  crave.  Patriotism 
(Vaterlandsliehe)  is  not  possible  in  those  who  are  not 
animated  by  the  longing  for  immortality,  and  by  the 
feeling  that  it  is  attainable  through  identification  with 
the  nation. 

Fichte's  conception  of  the  nation  exhibits  thus  two 
of  the  conspicuous  features  that  appeared  in  other 
phases  of  his  political  theory.  The  intense  individual- 
ism of  his  revolutionary  fervor  ^  recurs  in  the  idea  that 

Gesellsehaft  miteinander  fortlebeuden  und  sich  aus  sich  selbst 
immerfort  naturlich  und  geistig  erzeugenden  Mensehen,  das  insge- 
samt  unter  einem  gewissen  besondern  Gesetze  der  Entwieklung  des 
Gottlichen  aus  ihm  steht."  —  RedeVIII,  in  Werke,  Vol.  VII,  p.  381. 
1  Supra,  p.  138. 


NATION  ABOVE   STATE  315 

the  attachment  of  men  to  a  concrete  nation  is  deter- 
mined fundamentally  by  their  longing  for  immortality. 
Self-interest  of  this  particular  type  he  makes  the 
indispensable  condition  of  national  life.  From  a  dia- 
metrically opposite  point  of  view  the  complementary, 
if  not  contradictory,  dogma  appears  that  the  nation, 
quite  irrespective  of  the  individual,  is  an  element  in 
the  unfolding  and  realization  of  pure  abstract  idea. 
To  conceive  the  nation  in  this  latter  aspect  is  possible, 
the  philosopher  holds,  to  such  intelligences  only  as 
grasp  the  notion  of  the  eternal  and  the  divine.  Men  so 
limited  or  so  barbarous  as  not  to  believe  in  this  or  to 
look  upon  human  life  as  a  development  of  this  pri- 
mordial principle  cannot  be  in  the  real  sense  a  nation  or 
possess  a  national  character.  But  where,  as  in  the  Ger- 
man people,  the  true  ideal  is  apprehended,  the  nation, 
Fichte  declares,  is  far  above  the  state  and  the  common 
social  order.  The  state,  in  maintaining  internal  peace, 
order  and  well-being,  is  but  an  instrument  for  the  pro- 
motion of  the  nation's  end.  These  conditions,  with 
liberty  itself,  must  be  sacrificed  when  necessary  that 
the  nation  may  achieve  its  purpose  —  the  realization 
and  development  eternally  of  the  divine  principle  em- 
bodied in  it. 

A  comparison  of  this  doctrine  of  Fichte 's  with  that 
which  Savigny  began  to  propound  a  few  years  later  ^ 
shows  that  the  basic  philosophy  is  the  same  in  both.  A 
definite  social  aggregate  of  human  beings  owes  its  life 
and  its  identity  to  the  part  it  has  in  a  transcendental 
scheme  of  universal  existence.    This  aggregate  (Volk) 

1  Supra,  p.  304. 


316  POLITICAL  THEORIES 

Savigny  holds  to  be  most  perfectly  apprehended  by 
human  intelligence  as  state  {Stoat),  while  Fichte  holds 
its  character  to  be  best  expressed  as  nation  (Nation). 
Language  gives  to  Fichte  a  sufficiently  clear  indication 
of  the  outlines  of  the  entity;  Savigny  finds  an  addi- 
tional revelation  of  the  inner  reaHty  in  the  people's 
law.  What  both  philosophers  agree  upon  with  perfect 
harmony  is,  that  the  true  substance  of  the  national 
character  is  never  determined  by,  or  revealed  in,  the 
conscious  acts  or  volitions  of  any  single  individual  or 
any  single  generation. 

4.    The  Nation  as  a  Geographic  Unit 

The  course  of  theory  on  the  relation  between  nation 
and  geography  is  closely  analogous  to  that  of  the 
relation  of  nation  to  race.  Through  Bodin  and  Mon- 
tesquieu, as  we  have  seen,^  the  determination  of  govern- 
mental institutions  by  the  geographical  situs  was  made 
an  important  feature  of  scientific  politics.  In  this  early 
speculation  attention  was  given  chiefly  to  the  influence 
of  physical  environment  in  its  large  aspects  —  latitude, 
altitude,  climate,  relation  to  the  oceans  —  just  as  the 
characteristics  of  race  were  at  first  treated  as  applicable 
only  to  the  largest  aggregates  of  men.  But  later,  in  the 
one  case  as  in  the  other,  the  deterministic  principle 
was  carried  over  to  the  detailed  conditions  of  lesser 
units.  As  the  kind  of  physical  facts  that  had  been  held 
to  explain  the  distinction  between  Semitic  and  Ja- 
phetic peoples  in  general  were  resorted  to  in  explaining 
the  difference  between  particular  peoples  of  either  stock, 

^  Political  Theories  from  Luther  to  Montesquieu,  pp.  112,  418. 


NATION  AND   LAND  317 

SO  it  was  sought  to  find  in  such  physical  conditions  as 
had  differentiated  dwellers  in  different  zones  a  basis  for 
distinction  between  communities  dwelling  side  by  side 
in  the  same  zone.  The  search  received  a  practical 
stimulus  from  the  wars  for  territory  that  prevailed  in 
Europe  in  the  name  of  the  balance  of  power.  In  line 
with  the  whole  manner  of  eighteenth-century  thinking  ^ 
it  became  the  formula  for  the  demand  of  each  power 
that  it  should  have  its  "natural  boundaries."  Thus 
again  the  idea  developed  that  there  were  geographic 
facts  inherently  identified  with  the  existence  of  any 
given  nation. 

The  more  serious  philosophy  did  not  seize  with 
special  avidity  the  suggestion  that  a  particular  terri- 
tory was  an  essential  element  of  concrete  nationality. 
Conservatives  were  naturally  suspicious  of  the  idea, 
though  their  devotion  to  the  old  dynastic  order  led 
them  often  to  use  it  to  support  the  adjustments  made 
in  the  interest  of  that  order.  Edmund  Burke  was  of 
course  disinclined  to  put  emphasis  on  anything  but  the 
social  and  political  institutions  of  a  people  as  determin- 
ing its  character.  "  Our  country/'  he  said  in  his  Appeal 
from  the  New  to  the  Old  Whigs,  "is  not  a  thing  of  mere 
physical  locaHty.  It  consists,  in  great  measure,  in  the 
ancient  order  into  which  we  are  born.  We  may  have 
the  same  geographical  situation,  but  another  countr}^  ; 
as  we  may  have  the  same  country  in  another 
soil."  2 

Fichte  vacillated  in  respect  to  the  part  played  by  the 
geographical  factor.    In  his  ideal  of  a  closed  commercial 

1  Supra,  p.  46.  2  Works,  IV,  167. 


318  POLITICAL  THEORIES 

state  he  adopted,  as  we  have  seen/  the  theory  of  "nat- 
ural boundaries,"  but  interpreted  the  term  in  an  eco- 
nomic rather  than  a  military  sense.  This  doctrine 
gave  to  physical  environment  great  significance  in  the 
theory  of  the  nation.  In  his  Addresses,  however, 
Fichte  swung  sharply  away  from  such  a  conclusion  and 
declared  roundly  that  the  abiding  place  (Heimath) 
of  a  people  was  much  more  the  effect  than  the  cause  of 
its  essential  character.^ 

The  wavering  manifested  by  Fichte  was  reproduced 
in  the  speculation  of  many  succeeding  decades.  It  was 
involved  in  the  uncertainty  that  prevailed  as  to  the 
relation  of  nation,  people  and  state.  That  some  one,  if 
not  every  one,  of  these  entities  was  deeply  affected  by 
geographical  facts  was  generally  asserted.  But  the 
precise  meaning  and  the  interrelationship  of  these 
terms  remained  long  midetermined.  Schleiermacher 
propounded  the  dogma  that  a  clearly  defined  geographic 
unit  (Bodeneinheit)  will  be,  in  the  nature  of  things,  the 
abode  of  a  state.  Not  that  the  geographical  fact  was 
the  cause  of  the  state.  He  denied  this  as  "well  as  the 
doctrine  that  community  of  blood  or  of  language  made 
the  state.  AU  that  he  held  was  that  through  some  pro- 
cess of  history  the  inhabitants  of  the  region  would  sooner 
or  later  become  a  self-conscious  political  organism,^ 
and  the  boundaries  of  the  region  would  be  the  limits 
of  the  organism. 

Much  in  the  manner  of  Schleiermacher,  Hegel,  in 
his  Philosophy  of  History,  swept  the  whole  surface  of  the 

»  Supra,  p.  144.  2  Rede  IV. 

»  Werke,  Band  32,  S.  11,  15. 


GEOGRAPHY   AND   LANGUAGE  319 

earth  in  a  grand  survey  to  see  where  the  abodes  of  states 
could  be  detected.^  Rather  more  distinctly  than 
Schleiermacher  he  suggested  the  deterministic  in- 
fluence of  the  physical  facts  on  the  political;  yet  he 
fell  far  short  of  making  geography  the  creative  force 
in  the  development  of  nations. 

The  net  result  of  all  the  speculation  that  has  been 
noticed  was  that  some  relation  between  geography 
and  the  nation  was  recognized,  but  the  character  of  the 
relation  was  not  made  at  all  definite.  And  such  re- 
mained the  situation  throughout  the  fierce  controversies 
of  the  mid-century  over  the  rights  and  wrongs  of  nations 
and  of  nationalities.  For  none  of  the  concrete  prob- 
lems as  to  boundaries  could  a  scientific  formula  furnish 
an  acceptable  solution.  The  mountains,  deserts,  seas, 
rivers  and  other  features  of  the  earth's  surface  that 
had  seemed  to  be  natural  marks  of  separation  for  com- 
munities of  men  either  were  lacking  where  need  for 
them  was  greatest,  or,  when  present,  actually  furnished 
additional  incentives  to  strife  in  the  rivalry  for  occupa- 
tion and  control  of  them.  Nor  could  the  limits  in- 
dicated by  geography  be  made  to  coincide  with  the 
limits  indicated  by  language.  A  Germany  that  ful- 
filled the  glowing  demand  of  Arndt  for  unity  "  so  weit 
die  deutsche  Zunge  klingt^'  would  outrage  every  canon 
of  geographic  theory,  and  would  present  many  points 
where  geography  could  find  nothing  whatever  to  offer  as 
a  boundary.  And  there  in  the  heart  of  Europe  lay  the 
Swiss — a  stout  and  respected  nation,  defying  every  rule 
of  both  language  and  geography  in  its  national  life. 

1  Sibree's  translation,  Introduction,  pp.  79  et  seq. 


320  POLITICAL   THEORIES 

No  more  in  the  facts  of  physical  environment  than 
in  those  of  blood  and  language,  therefore,  did  the  polit- 
ical theory  of  the  early  nineteenth  century  find  an 
objective  criterion  of  nationahty  that  would  suffice  to 
still  the  insistent  clamor  of  the  democratic  liberalism 
for  recognition  of  the  human  will  as  the  paramoimt 
factor.  Through  the  growing  precision  of  geographic 
science  as  wrought  out  by  Humboldt  and  Ritter,  and 
through  the  rise  of  ethnology  and  anthropology  and 
comparative  philology,  the  influence  of  heredity, 
environment  and  speech  on  the  evolution  of  human 
societies  was  more  justly  apportioned  and  balanced,  and 
poHtical  science  defined  the  nation  in  terms  that  gave 
due  weight  to  each,  while  assigning  to  the  will  and 
feeling  of  living  men  a  part  that  was  far  from  the  least. 

5.   Nation  and  Nationality 

The  task  of  tracing  the  growth  of  the  dogmas  of 
nationahsm  during  the  half-century  following  1815  is 
made  almost  impossible  by  the  confusion  in  the  sense 
of  the  chief  terms  involved.  In  both  scientific  and 
popular  usage,  and  in  all  languages  alike,  the  meanings 
attached  to  "nation,"  "people"  and  "state"  exhibited 
all  degrees  of  diversity  and  contradictoriness.  In  Eng- 
lish Bentham  and  Austin  and  Cornewall  Lewis  at- 
tempted to  escape  the  difficulties  by  devising  new  and 
too  often  cumbrous  terms  and  definitions;^  but  their 
labors  received  little  recognition  by  anybody.  In 
many  cases  where  their  suggestions  were  promising 
for  clearness  there  was  too  much  of  pure  utilitarian 

^  See  especially  Lewis's  Use  and  Abuse  of  Political  Terms. 


NATION,   PEOPLE,   STATE  321 

implication  to  encourage  acceptance,  and  in  many  other 
instances  they  refused  recognition  to  ideas  and  distinc- 
tions that  they  regarded  as  savoring  too  much  of  silly 
German  idealism,  unsuited  to  the  hard  common  sense 
of  Englishmen.  The  French  were  too  deeply  immersed 
in  the  conflict  between  Hberals  and  reactionaries  for 
the  control  of  the  government  to  use  terms  in  any  sense 
save  that  which  would  inure  to  the  advantage  of  the 
two  parties  respectively.  Only  in  German  specula- 
tion was  there  a  serious  effort  to  work  out  a  precise 
poHtical  terminology,  and  even  here  no  consensus  was 
achieved. 

As  between  nation  (Nation)  and  people  (Volk)  the 
Germans  tended  clearly  to  use  the  former  when  the 
idea  of  race  was  to  be  stressed,  and  the  latter  when 
governmental  institutions  or  functions  were  chiefly 
in  mind.  This  was  the  precise  reverse  of  the  tendency 
in  usage  of  the  terms  in  English.  As  ethnology  and 
anthropology  and  the  new  sociology  revealed  the 
errors  and  uncertainties  of  ancient  ideas  about  race 
distinctions,  German  political  science  relegated  Nation 
to  these  preliminary  fields.  For  the  concrete  problem 
of  German  unity  a  more  serviceable  word  was  Stamm, 
which  figured  quite  largely  in  the  debates  of  the  mid- 
century.^  This  made  no  appeal  to  European  specula- 
tion at  large ;  but  another  term  made  its  way  so  rap- 
idly into  general  use  as  to  absorb  all  the  connotation  of 

1  The  nearest  to  an  equivalent  of  this  term  in  English  is  probably 
"stock."  It  means  a  social  aggregate  consisting  of  families  mostly 
of  the  same  blood  —  a  branch  of  a  race.  The  Bavarians,  e.g.,  are 
a  Stamm  of  the  German  Nation  (in  Fiehte's  sense  of  Nation).  Cf. 
Mohl,  Encyklopaedie,  2te  Aufl.,  sec.  4  and  note  (1872). 


322  POLITICAL  THEORIES 

political  bearing  in  the  word  nation  and  thus  to  con- 
tribute to  its  displacement.  This  new  term  was  "na- 
tionahty"  in  the  concrete  sense  —  a  nationality  {na- 
tionalite,  Nationalitdt) . 

Originating  in  the  protests  of  various  communities 
against  the  disposition  made  of  them  by  the  Congress 
of  Vienna,  this  word  nationaHty  focussed  both  popular 
and  scientific  conceptions  of  poHtical  fundamentals, 
and  in  all  languages  alike.  In  the  vocabulary  of  revo- 
lutionaiy  agitation  it  designated  any  cormnmiity  in 
which  or  for  which  independent  or  autonomous  govern- 
ment was  insistently  demanded.  Czechs,  Serbs  and 
sundry  other  groups  of  Sla\dc  people,  Irish,  Rou- 
manians —  each  was  recognized  as  a  nationality  when 
a  claim  to  all  that  was  implied  in  "nation"  would  have 
excited  ridicule.  The  rights  and  wrongs  of  nationahties 
were  the  theme  of  Mazzini's  solemn  and  splendid  Ht- 
erary  visions,  but  no  one  could  discern  any  sohd  sub- 
stance in  his  rhapsodizing,  save  anarchistic  democracy. 
Louis  Napoleon  proclaimed  his  adhesion  to  the  principle 
of  nationalities;  but  for  the  sake  of  a  deal  with  Bis- 
marck for  territory  he  would  deny  that  the  Belgians 
constituted  a  nationality.^  Thus  the  new  term  was 
abused  by  the  practical  politicians  and  the  agitators ; 
in  the  analysis  to  which  more  scientific  minds  subjected 
it,  important  progress  was  revealed. 

In  the  first  place,  the  influence  of  blood  and  language 
steadily  receded  in  relative  significance  through  the 
decades  in  which  the  nationality  was  the  centre  of  de- 

»  Cf.  the  exceUent  art.  by  Hauser,  "  Le  prineipe  des  nationalltes," 
in  Revue  Politique  Internationale,  No.  20  (1916). 


NATIONALITY   IN   HISTORY  323 

bate.  Other  factors  were  recognized  as  playing  a  large 
part  in  the  bond  of  social  union.  Religion,  law,  cus- 
toms, morals,  literature,  art,  the  extent  and  kind  of 
intercourse  with  neighboring  societies  — ■  all  these,  as 
well  as  the  physical  environment,  were  seen  to  work  for 
the  consolidation  and  as  well  for  the  disintegration  of 
peoples.  As  the  growing  social  sciences  brought  to 
light  the  more  subtle  and  obscure  operations  of  these 
factors,  history  with  its  rapidly  developing  improve- 
ments in  scope  and  accuracy  brought  prominently  into 
view  the  fact  that  the  resultant  of  all  these  forces 
varied  greatly  from  age  to  age.  Thus  the  idea  gained 
ground  that  there  was  in  nationality,  either  as  a  quality 
or  as  a  concrete  fact,  little  or  nothing  of  the  fixedness 
or  finality  that  had  been  ascribed  to  it.  The  evolu- 
tionary philosophy  which  Darwin  made  so  conspicuous 
in  the  physical  world  at  the  middle  of  the  century  had 
its  inevitable  effect  on  political  science.  It  tended 
steadily  to  appear  to  thoughtful  minds  that,  so  far  at 
least  as  concerned  the  unconscious  elements  in  the 
concept,  a  nationality  was  but  the  expression  of  an 
existing  combination  of  social  forces  that  was  doomed 
to  pass  as  it  had  come. 

Under  this  historical  interpretation  of  the  idea  of 
nationality  there  could  be  presented  a  bewildering 
variety  of  objective  conditions  explaining  the  existence 
of  different  peoples  at  the  same  time  and  of  the  same 
people  at  different  times.  The  modem  English  were 
assumed  to  be  determined  by  unity  of  race,  language, 
religion,  geographical  situation;  the  contemporary 
Swiss  exhibited  complete  diversity  on  each  of  these 


324  POLITICAL  THEORIES 

matters;  the  Germans  were  miified  as  to  some  and 
diverse  as  to  others.  But  the  authentic  history  of  a 
millennium  showed  in  Great  Britain  and  in  Germany  in 
past  times  hardly  less  diversity  than  Switzerland  ex- 
hibits to-day,  and  drove  from  the  field  of  rational  politics 
the  idea  of  any  permanent  form  in  which  the  identity 
of  a  people  was  expressed. 

Out  of  the  difficulties  inherent  in  the  earlier  concep- 
tions of  nation  and  nationality  arose  the  doctrine  that 
the  essence  of  the  matter  was  to  be  f  oimd  in  the  polit- 
ical institutions  of  a  people.  The  transition  to  this 
theory  is  seen  in  the  distinction  that  was  devised 
between  natural  and  political  nationality.-^  Race  and 
language  were  held  to  determine  natural  nationality, 
while  the  political  species  was  that  which  prevailed 
where  a  lesser  was  absorbed  by  a  greater  people  through 
the  exertion  of  either  moral  or  physical  force.  The 
people  resulting  from  this  blending  process  was  held  to 
have  as  good  a  claim  to  independence  as  one  that 
based  itself  upon  race  and  language. 

The  doctrine  just  noticed  was  prompted  in  large  meas- 
ure by  practical  issues  arising  out  of  the  aspirations  of 
France  under  Napoleon  III  for  territorial  aggrandize- 
ment at  the  expense  of  small  states  on  its  borders.  The 
full  development  of  the  doctrine  appeared  in  the  theory 
as  to  the  relation  of  nationality  and  state,  which  will 
be  considered  in  the  next  section.  A  well-reasoned 
definition  of  nationality  in  the  historical  spirit,  inde- 
pendently of  the  political  elements,  was  presented  in 

*  Cj.  Zopfl,  Grundsatze  des  gemeinen  Deutschen  Staatsrechts, 
5te  Auflage  (1863),  Erster  Absohnitt,  sec.  13. 


BLUNTSCHLI   ON   NATION  325 

the  fifties  and  sixties  by  Bluntschli/  whose  Swiss 
nativity,  South  German  university  associations,  liberal 
sympathies  in  current  politics  and  broad  historical 
scholarship  constituted  a  peculiarly  effective  equipment 
for  scientific  speculation. 

The  formula  in  which  he  embodied  his  conception  of 
a  people  {Nation)  is  this  : 

A  union  of  masses  of  men  of  different  occupations  and  social 
strata  in  a  hereditary  society  of  common  spirit,  feeling  and 
race,  bound  together  especially  by  language  and  customs  in 
a  common  civilization  which  gives  them  a  sense  of  unity  and 
distinction  from  all  foreigners,  quite  apart  from  the  bond  of 
the  state  .2 

In  the  exposition  of  this  formula  Bluntschli  gave  due 
weight  to  all  the  familiar  factors  in  nationality  —  race, 
language,  religion,  geography  and  general  physical 
environment,  but  he  added  and  emphasized  the  psy- 
chological influences  of  common  feeling  and  common 
spirit.  This  state  of  mind  of  the  individuals  he  de- 
clared to  be  responsible  for  the  initial  impulse  to  imity. 
Objective  conditions  and  the  general  course  of  history 
brought  this  impulse  to  fruition.  The  relative  impor- 
tance of  the  various  conditions  varied  from  age  to  age, 
and  the  character  and  manifestations  of  the  national 
spirit  varied  accordingly ;  but  the  constant  factor  must 
be,  so  long  as  a  people  could  be  said  to  exist,  a  sense  in 
the  individuals  of  unity  among  themselves  and  differ- 

1  See  especially  his  Kleine  Schriften,  Band  II.  The  lecture  on 
the  development  of  national  states  (p.  70)  is  a  fuUer  statement  and 
discussion  of  the  ideas  contained  in  his  Allgemeine  Staatslehre,  Bueh 
2,  Kap.  1-4.  This  latter  work  appeared  in  six  successive  editions 
from  1852  to  1886,  the  last  posthumous. 

2  Theory  of  the  State,  Enghsh  translation,  p.  90. 


326  POLITICAL  THEORIES 

entiation  from  other  groups.  The  feeling  and  spuit 
that  are  the  essence  of  nationahty  might  be  and  generally 
were  imconscious  in  their  origin  and  development ; 
but  they  were  none  the  less  real.  The  concept  of  the 
nation  could  be  understood  only  as  a  concept  of  histor- 
ical civilization  (Cultur). 

Two  features  of  Bluntschli's  definition  need  to  be 
especially  noted.  The  first  is  the  suggestion  of  Hegelian 
and  Fichtean  mysticism  in  the  resort  to  a  hazy  and 
indefinable  state  of  mind  as  the  ultimate  factor  in 
nationality.  The  second  is  the  care  with  which  a  people 
as  thus  defined  {Nation,  Nationalitdt)  is  distinguished 
from  a  people  in  the  political  sense  (Volk).  Bluntschli 
sets  forth  at  length  and  with  iteration  the  doctrine 
that  a  people  may  or  may  not  constitute  the  basis  of 
a  state,  but  remains  a  people  without  regard  to  that. 
The  criteria  of  the  two  entities  are  quite  independent. 
In  this  reasonmg  he  is  on  ground  that  was  at  the  centre 
of  the  stirring  politics  of  the  mid-century,  where,  in 
the  stiTiggles  for  national  existence  and  glory,  the  dif- 
ferences and  conflicts  of  political  theoiy  were  only  less 
heated  than  the  conflicts  of  statesmen  and  armies. 

6.    The  National  State 

The  conceptions  of  state  and  nation  examined  in  the 
preceding  sections  were  always  more  or  less  intimately 
blended  in  the  systems  concerned.  Yet  there  was  wide 
difference  of  doctrine  as  to  the  precise  relationship  of 
the  two  ideas.  This  was  accentuated  by  the  lack  of 
uniformity  in  the  usage  of  the  terms,  and  by  the 
general  liberal  and  conservative  leanings  respectively 


NATIONALITY  AND  STATE  327 

of  the  philosophers.  At  the  middle  of  the  century, 
moreover,  the  intense  conflicts  over  German  and 
Italian  unity  and  the  movement  for  secession  in  the 
United  States  furnished  decisive  concrete  foundations 
for  divergencies  in  theory. 

The  state  was,  as  has  been  shown,  explained  as 
ultimately  expressed  in  the  attributes  of  personality  or 
of  organism  or  both.  Nationality  was  expressed  in 
various  historically  developed  facts  and  feelings  per- 
vading groups  of  human  beings.  It  became  an  im- 
portant question  whether  the  facts  and  feelings  that 
determined  nationality  were  essential  to  the  concept  of 
the  state.  Was  the  lofty  function  in  the  scheme  of 
human  existence  assigned  by  Hegel  and  Stahl  and 
BluntschH  to  the  state,  predical^le  of  an  aggregate  of 
men  that  lacked  the  character  of  a  nationality?  In 
short,  could  there  be  a  state  without  a  people? 

The  distinction  between  a  people  and  a  population 
had  been  a  commonplace  of  political  theory  from  at 
least  the  time  of  Cicero.^  Under  the  influence  of 
Rome's  far-flung  and  long-enduring  dominion  the  idea 
of  people  had  been  in  large  measure  submerged  in  that 
of  population,  and  the  identity  of  the  state  had  been 
fixed  by  reference  to  the  sovereign  ruler  quite  without 
regard  to  the  mass  of  the  ruled.  Bodin  propounded 
the  precise  formula  that  determined  this  doctrine  for 
modern  times.^  Hobbes  and  the  English  Utilitarians 
adopted  it  substantially  intact.  When  Bentham  and 
Austin  made  the  "habit  of  obedience"  the  criterion  of 

•  Political  Theories,  Ancient  and  Medieval,  p.  120. 

*  Political  Theories,  Luther  to  Montesquieu,  pp.  86,  96. 


328  POLITICAL  THEORIES 

a  political  society  or  state,  they  left  no  room  for  con- 
siderations of  nationality ;  but  continental  and  Ameri- 
can thinkers  were  not  easily  able  to  ignore  it. 

In  German  theory  the  imperial  idea  had  some  sup- 
porters. The  unmistakable  power  of  the  Austrian 
monarchy  made  it  awkward  to  deny  to  it  the  character 
of  a  state.  Hence  there  continued  to  be  reactionary 
thinkers  who  held  that  wherever  and  so  far  as  a  single 
sovereign  authority  was  in  control,  there  a  state  had 
its  being.  The  racial,  linguistic,  historical  or  other 
likenesses  or  unlikenesses  among  the  population  had 
nothing  to  do  with  the  matter. 

Much  more  general,  however,  was  the  doctrine  that 
''state,"  while  not  necessarily  presupposing  a  people, 
had  a  special  significance  in  connection  with  nation- 
ality. By  acquiring  the  attributes  of  the  state,  a 
nationality  (Nationalitdt)  was  held  to  become  in  the  full 
sense  a  people  (Volk).  This  was  the  particular  doc- 
trine of  the  historical  school  of  thought  in  political 
science.  Savigny  declared  that  only  after  achieving 
personahty  as  state  could  a  people  manifest  the  spirit 
that  it  embodied.-^  Waitz  asserted  that  the  nationality 
was  a  natural  union,  which  was  rounded  out  and  per- 
fected by  the  political  union  of  the  state.^  To  Stahl 
and  Bluntschli,  also,  their  respective  conceptions  of 
the  state  ^  were  particularly  if  not  exclusively  valid  as 
expressing  a  unity  of  organization  for  the  maintenance 
of  law  and  justice  in  a  people  already  united  by  other 
bonds  of  nationality. 

To  the  question  whether  there  could  be  a  state  with- 

'  Cf.  supra,  p.  304.    ^  Grundziige,  Kap.  I.     ^  Supra,  pp.  305  et  seq. 


PEOPLE   AND   STATE  329 

out  a  people,  the  philosophy  of  the  mid-nineteenth  cen- 
tury, therefore,  was  not  uniform  in  its  answer,  but 
showed  a  strong  leaning  to  the  negative.  What  was 
the  answer  to  the  converse  question :  Could  there  be 
a  people  without  a  state  ?  Was  community  of  race  or 
language  or  history  or  tradition,  or  a  sense  of  such 
community  regardless  of  the  facts,  sufficient  to  justify 
political  science  in  ascribing  significance  to  an  aggregate 
of  men  in  which  imity  of  government  and  law  was  lack- 
ing? In  this  matter  as  in  the  preceding  there  was  no 
complete  consensus  of  doctrine.  Speculative  opinion 
varied  much  according  to  the  sympathies  of  the  philoso- 
phers in  the  practical  issues  of  the  time.  There  were 
those  who  held  that  a  common  sense  of  law  and  justice, 
expressed  in  political  institutions,  was  but  one  of  the 
attributes  that  defined  a  people  and  was  in  no  way  an 
indispensable  one ;  that  there  could  be  a  people  without 
the  state.  There  were  those  who  held  that  the  state 
was  the  necessary  form  of  a  people  (Volk)  and  that  only 
so  far  as  manifested  in  this  form  could  a  people  be  said 
to  exist.  Finally,  there  were  those  who  held  that  a 
stateless  people,  or  nationality,  must  necessarily  have 
in  it  the  seeds  of  political  consciousness,  and  must  there- 
fore be  regarded  scientifically  as  a  potential  and  inchoate 
people  destined  certainly  to  assume  the  state  form.^ 

1  German  discussion  of  these  various  ideas  was  particulariy 
voluminous.  See  Savigny,  System  des  Romischen  Rechts,  Buch 
I,  Kap.  ii,  see.  9 ;  Dahlmann,  Politik,  sec.  6 ;  Waitz,  Grundzuge, 
Kap.  I ;  Zacharia,  Vierzig  Biicher,  Buch  II,  Hauptst.  2 ;  Stahl, 
Rechts-  und  Staatslehre,  II,  S.  165.  Not  all  these  authorities  are 
self-consistent,  presenting  different  conceptions  of  people  and  state 
according  to  the  needs  of  the  particular  topics  under  consideration. 
This  is  especially  the  case  with  Zacharia ;  with  the  reference  above 
compare  III,  5,  2,  and  XI,  4. 


330  POLITICAL   THEORIES 

The  doctrine  that  nationaHty  and  pohtical  independ- 
ence were  inseparable  was  basic  in  all  the  revolutionary 
agitation  of  the  times.  Mazzini's  impassioned  dream- 
ing seemed  almost  rational  now  and  then  as  he  ex- 
pomided  the  moral  order  of  the  world  and  revealed  in  it 
the  law  that  every  people  in  whom  a  consciousness  of 
unity  was  expressed  in  its  language,  literature  and  his- 
tory must  have  a  governmental  unity  to  correspond. 
Such  a  people,  he  held,  embodied  a  particular  spirit 
to  which  a  part  was  assigned  in  the  progress  of  the 
human  race,  and  it  was  therefore  an  absolute  right 
that  the  development  and  activity  of  that  spirit 
should  be  unhampered.^ 

The  Mazzinian  philosophy  of  the  national  state  was 
so  blended  and  permeated  wdth  his  demands  for 
democracy  in  government  as  to  lose  much  of  the 
cogency  that  survived  his  rhapsodical  form  of  expres- 
sion. Substantially,  however,  his  thought  was  that 
of  the  Germans  who  saw  in  nationahty  an  element  in 
the  world  order,  entitled  to  free  expression  through 
the  organism  of  the  state.  Americans  on  both  sides  in 
the  Civil  War  of  1861-65  were  more  or  less  consciously 
under  the  influence  of  the  same  doctrine.  Northerners 
and  Southerners  both  proclaimed  themselves  the 
embodiments  of  a  national  world-mission,  but  they 
differed  as  to  the  relative  weight  of  the  factors  that  fixed 
the  limits  of  a  nationality.^ 

*  See  Mazzini's  Essays,  translated  by  Okey,  esp.  pp.  19,  154-5, 
170-1. 

2  The  North  emphasized  geographic  continuity,  while  the  South 
stressed  uniformity  of  social  institutions  and  especially  the  senti- 
ment of  unity  among  the  people. 


PEOPLE    AND   STATE  331 

Speculation  of  the  less  fervid  and  revolutionary  order 
tended  to  uphold  a  qualified  but  not  absolute  form  of 
the  dogma  of  the  national  state  —  to  maintain  that  a 
people  united  by  other  bonds  need  not  necessarily 
have  also  the  form  of  the  state,  but  would  probably 
acquire  it  sooner  or  later.  According  to  this  view  the 
peculiar  function  of  a  people  in  the  life  of  humanity 
might  be  fully  realized  through  its  literature,  language, 
religion  or  art,  without  the  aid  of  political  unity. 
Bluntschli,  for  example,  was  positive  in  rejecting  the 
dogma  that  every  people  must  be  a  state  and  every  state 
a  people.  Experience  and  logic  both  convinced  him 
that  the  two  need  not  coincide.  The  state  might  em- 
brace the  whole  or  fragments  of  several  nationalities ; 
a  people  might  be  politically  organized  in  several  states. 
Not  every  people,  he  declared,  was  endowed  with  the 
capacity  for  exclusive  state  life.  Nationality  must  be 
regarded  as  a  cultural,  not  a  pohtical  concept.  The 
consciousness  of  unity  that  defines  a  people  might  exist 
as  to  various  aspects  of  civilized  life  without  extending 
to  the  governmental  organism.  Yet  Bluntschli  could 
not  escape  the  conclusion  that  among  the  influences  that 
operated  to  bring  states  into  existence  nationality  had 
always  been  strong  and  in  modern  times  had  become 
clearly  the  strongest.^ 

This  conception  of  the  national  state,  assigning  to  it 
relative  and  transitional  rather  than  absolute  value, 
was  well  suited  to  the  historical  spirit  that  was  domi- 
nating political  theory.    The  progress  of  many  small 

1  Kleine  Schriften,   II,   84  et  seq.     Also  Allgemeine   Staatslehre, 
Buoh  li,  Kap.  2-4. 


332  POLITICAL   THEORIES 

nationalities  in  civilization  and  self-consciousness  was 
a  conspicuous  fact  of  recent  decades,  and  their  aspira- 
tions for  independent  governments  were  duly  justi- 
fiable by  the  doctrine.  At  the  same  time  the  right  of 
existing  national  states  to  be  was  fully  explicable. 
Beyond  this  there  remained  opportunity  to  foreshadow 
a  future  world-state,  into  which  the  national  states 
would  insensibly  merge  as  the  consciousness  of  unity 
progressed  from  and  through  nationality  to  humanity.^ 
The  logical  sufficiency  of  the  reasoning  on  which  the 
possibility  of  a  world-state  was  based  was  generally  con- 
ceded. If  language,  religion,  law  and  the  other  elements 
of  civilization  should  become  uniform  throughout  man- 
kind, a  political  system  to  correspond  might  be  an- 
ticipated. The  national  state  would  be  by  the  applica- 
tion of  its  own  principle  submerged  in  and  superseded 
by  the  larger  whole.  This,  however,  was  clearly  an 
ideal  for  the  remote  future.  Of  immediate  practical 
concern  was  the  problem  to  what  extent,  if  at  all, 
recognition  was  due  from  the  national  state  to  a  com- 
munity within  its  bounds  whose  feeling  of  unity  with 
its  neighbors  was  qualified  by  aspirations  for  some  meas- 
ure of  autonomy.  This  was  the  problem  involved  in 
the  momentous  discussions  over  what  was  called 
particularism  in  Germany,  state-sovereignty  in  Switzer- 

^  Cf.  Bluntsehli,  Allgemeine  Staatslehre,  p.  114:  "  Die  Entwicke- 
lung  der  Mensehheit  setzt  nieht  bloss  die  freie  Ofifenbarung  und 
den  Wettkampf  der  Nationen  als  Grundbedingung  voraus,  sondern 
sie  verlangt  hinwieder  die  Verbindung  der  Nationen  zu  liolierer 
Einheit.  .  .  .     Die  hochste  Staatsidee  ist  menschlieh." 

Schleiermaclier,  in  the  earlier  decades,  rejected  the  idea  of  a 
world-state,  but  on  practical  rather  than  theoretical  grounds.  See 
his  Works,  Vol.  32,  p.  31,  esp.  note. 


NATIONALISM  AND   PARTICULARISM  333 

land  and  the  United  States.  The  question  was  pri- 
marily one  of  politics  and  constitutional  law,  but  the 
controversies  over  it  led  to  the  formulation  of  the 
most  absolute  dogmas  concerning  the  national  state, 
as  well  as  to  the  most  astute  and  subtle  assaults  on  the 
validity  of  that  conception.  Two  Americans  were 
conspicuous  in  these  achievements.  John  C.  Calhoun, 
in  his  Disquisition  on  Government  and  other  wi'itings, 
propounded  theories  in  1850  that  the  European  philoso- 
phers of  the  next  generation  gladly  appropriated  for 
the  defence  of  the  rights  of  the  lesser  communities. 
On  the  other  side  Elisha  Mulford,  in  The  Nation,^ 
gave  to  the  American  people,  after  the  Ci\dl  War,  a 
version  of  German  political  theory,  in  the  manner 
and  with  much  of  the  substance  of  Stahl,  skilfully 
adapting  the  doctrines  to  the  demonstration  that 
against  the  national  state  any  form  of  self-assertion  by 
a  lesser  community  within  it  violates  the  moral  order 
of  the  universe.  To  Mulford  a  homogeneous  popula- 
tion on  a  continuous  and  well-defined  geographic  area 
was  a  divinely  designated  embodiment  of  sovereign 
poHtical  power;  the  social  aggregates  through  whose 
coalescence  this  people  was  created  retained  only 
historical  or  administrative,  never  supreme  govern- 
mental, significance.  Where  the  conditions  of  nation- 
ality prevailed   in  these    aggregates   the  union-state 

1  The  word  nation  is  used  by  the  author  for  the  express  purpose 
of  inculcating  the  idea  of  the  national  state ;  for  he  declares  that 
he  means  by  "nation"  what  is  usually  expressed  in  EngUsh  by 
"state."  To  designate  a  state  in  the  special  sense  of  member  of 
the  United  States  he  resorts  to  the  typographical  form  "State," 
but  prefers  to  substitute  for  it  as  a  rule  the  term  commonwealth. 
Preface,  p.  viii. 


334  POLITICAL   THEORIES 

(Bundesstaat)  became  ipso  facto  the  type  of  sovereign 
organization.^ 

The  confederacy  (Staatenhund) ,  on  the  other  hand, 
was  found  equally  rational  by  Calhoun,  and  far  more 
reconcilable  with  the  facts  of  history  and  law.  Most 
important  from  our  present  point  of  view  was  his  stress 
on  the  continuing  vahdity  of  the  will  of  a  community 
in  fixing  its  political  status.  That  the  supremacy  of 
this  will  could  be  set  aside  by  the  mere  geographical 
proximity  of  other  'communities,  or  by  association  with 
them,  even  if  they  were  of  hke  nationahty,  was  to  him 
sheer  nonsense.  His  doctrine  illustrated  the  existence, 
throughout  the  heyday  of  the  nationalistic  theory,  of 
an  opposition  to  it  based  upon  the  idea  that  in  last 
analysis  the  foundation  of  the  state  was  laid  not  in 
objective  conditions,  historical  or  environmental,  but 
in  the  volition  of  living  men. 

7.   Summary  and  Conclusion 

The  seventh  decade  of  the  nineteenth  century  wit- 
nessed the  unification  of  Italy,  the  United  States  and 
Germany.  In  the  momentous  events  attending  this 
achievement  the  principle  of  objectively  determined 
nationality  was  exploited  extensively  in  Italy  and 
America  and  to  a  less  degree  in  Germany.  Race, 
language  and  geography  happened  to  indicate  bounds 
that  corresponded  fairly  well  with  the  purposes  of  the 
American  and  Itahan  nationaHsts,  and  this  fact  colored 
the  emotional  appeals  of  the  war  times.  For  the  Ger- 
mans, the  conditions  both  external  and  internal  im- 

1  The  Nation,  chaps,  v  and  xvi. 


NATIONALISM   IN   DECLINE  335 

posed  serious  qualifications  upon  the  demand  for  boun- 
daries fixed  by  race  or  geography.^  But  to  whatever 
extent  the  idea  of  objectively  determined  nationality 
persisted  in  popular  thought  and  emotional  literature, 
it  ceased  by  the  end  of  the  eighth  decade  of  the  cen- 
tury to  have  any  important  place  in  political  theory. 
The  rational  foundations  of  the  idea  were  steadily 
undermined  by  both  the  facts  and  the  philosophy  of 
the  age.  Old  ideas  as  to  distinctions  between  races  and 
languages  were  wholly  transformed  by  the  development 
of  anthropology  and  ethnology.^  The  natural  barriers 
by  which  geographic  unities  were  determined  were 
reduced  to  nullity  by  the  marvels  of  intercommunica- 
tion wrought  by  steam  and  electricity.  Capitalistic 
industry  and  commerce  created  lines  of  union  and  of 
cleavage  that  crossed  and  endlessly  confused  the  an- 
cient lines  of  language  and  kindred.  The  historical 
and  comparative  methods  in  jurisprudence  and  phi- 
lology destroyed  on  the  one  hand  the  myths  of  long- 
standing national  solidarity  and  achievement,  and 
proved  on  the  other  hand  that  institutions  assumed  to 
be  the  characteristic  glory  of  certain  peoples  were  as 
widespread  as  humanity  itself.^  Political  science  caught 
the  full  infection  of  the  Darwinian  spirit  that  ruled  in 
the  physical  field,  and  the  state  was  regarded  as  at 
any  time  merely  a  stage  in  an  endless  series  of  evolu- 
tionary transformations. 

»  Supra,  pp.  298,  319. 

^  See  the  excellent  monograph  by  J.  L.  Myres,  "The  Influence 
of  Anthropology  on  the  course  of  Political  Science,"  in  University 
of  California  Publications  in  History,  Vol.  IV,  no.  1. 

'  Cf.  Henry  Sumner  Maine,  Ancient  Law;  E.  A.  Freeman,  Com- 
parative Government. 


336  POLITICAL   THEORIES 

Under  the  influence  of  this  philosophy  there  was  a 
constant  tendency  of  theory  to  ignore,  or  at  least  to 
reduce  to  insignificance,  the  objective  elements  in  the 
conception  of  nationahty.  Correspondingly  the  im- 
portance of  the  popular  will  was  increased.  This 
movement  was  a  concomitant  of  the  steady  growth  of 
democratic  ideas  in  all  phases  of  social  and  political 
life.  The  policy  of  the  Napoleonic  empire  in  France 
gave  ostentatious  support  to  the  principle  that  an 
expression  of  a  people's  will  should  take  precedence  of 
all  other  considerations  in  determining  its  allegiance, 
—  that  the  plebiscite  should  be  the  supreme  criterion 
of  nationality.  However  grotesque  were  some  aspects 
of  this  principle  in  practical  application,^  its  theoretical 
foundations  were  in  harmony  wdth  the  times. 

The  imification  of  Germany  by  Prussia  exhibited 
no  application  of  the  plebiscitary  principle,  nor,  in- 
deed, of  the  other  piinciple  of  determining  nationality. 
Brute  force  was  all  that  operated  when  Prussia  ab- 
sorbed the  Danes  of  Schleswig  and  the  Germans  of 
Hanover,  and  the  new-made  empire  took  over  the 
French  of  Alsace-Lorraine.  In  America  deference  to 
the  principle  of  the  popular  will  was  indicated  by  the 
use  of  the  plebiscite  in  adopting  the  terms  of  the  re- 
adjustment of  relations  between  the  victorious  and 
the  vanquished  sections;  but  the  form  was  illusor}^, 
and  the  substantial  factor  in  the  reconstruction  was 
the  military  power  of  the  North.^ 

^  For  example,  in  the  annexation  of  Nice  to  France,  and  in  the 
French  establishment  of  Maximilian's  empire  in  Mexico. 

*  The  elections  in  the  conquered  states  were  under  the  direction 


FEELING   AND    REASON  337 

When,  just  at  the  end  of  our  period,  the  Balkan 
question  convulsed  European  opinion,  and  the  problem 
of  nationahty  had  to  be  solved  for  Roumanians,  Serbs, 
Bulgars,  Turks  and  Greeks,  there  was  a  distinct  re- 
action toward  the  principle  of  objective  determination. 
Race,  language,  religion,  historical  tradition  and  myths 
were  all  duly  paraded  as  grounds  for  the  erection  of 
Turkish  provinces  into  national  states.  Geography, 
however,  especially  in  Macedonia,  failed  to  furnish 
unities  that  would  correspond  to  those  indicated  by  the 
other  factors.  In  the  contentions  over  boundaries 
the  popular  spirit  and  will  rose  to  a  prominent  position 
in  each  of  the  new  states,  though  the  manifestation  of 
this  influence  was  more  striking  in  hatred  of  one  another 
than  in  internal  cohesion  and  harmony. 

Despite  the  adverse  influence  of  the  Balkan  problems, 
the  general  trend  of  rational  theory  continued  toward 
primary  emphasis  on  feeling  and  will  as  the  principle 
of  nationality.  This  prevailing  doctrine  at  the  end 
of  our  period  was  skilfully  and  eloquently  summed  up 
by  Renan  in  a  discourse  delivered  at  the  Sorbonne  in 
1882.^  He  did  not  conceal  the  conscious  relation  of 
his  argument  to  contemporary  problems;  he  con- 
fessed his  animosity  toward  those  great  states  which 
take  peoples  by  the  throat  and  say,  "You  speak  the 
same  language  that  we  do,  therefore  you  belong  to  us." 
But  this  and  other  allusions  to  current  aspects  of  Pan- 
German  and  Pan-Slavic  policy  do  not  affect  the  clarity 
and  force  of  his  scientific  contentions. 

and  control  of  the  army  of  the  United  States,  enforcing  rules  pre- 
scribed by  the  conqueror  as  to  who  should  vote. 

'■  Published  in  his  Discours  et  Conferences,  2me  ed.,  p.  277. 
z 


338  POLITICAL   THEORIES 

Renan  takes  up  in  order  all  the  different  items  in  the 
list  of  objective  facts  that  have  been  used  to  explain 
nationahty.  Race  he  finds  without  significance,  be- 
cause the  term  itself  is  ambiguous  and  obscure,  and  in 
the  sense  of  blood  kindred  no  race  is  pure.^  Language 
is  not  conclusive,  as  is  shown  by  the  diversity  in 
Switzerland,  which  is  a  nation,  and  the  identity  in 
Great  Britain  and  the  United  States,  which  are  not  one 
nation.  Community  of  interests  makes  not  a  nation, 
but  at  most  a  customs-miion.^  Geography  —  natural 
frontiers  —  is  the  most  arbitrary  of  criteria  and  means 
only  endless  wars.  Histoiy,  when  authentic,  is  more 
likely  to  divide  than  to  consolidate  a  nation ;  only 
when  preserved  in  erroneous  form  or  forgotten  alto- 
gether are  the  facts  of  its  beginnings  promotive  of 
nationality.^ 

Having  excluded  thus  all  the  external  criteria,  Renan 
finds  the  essence,  the  soul  of  a  people  to  consist  in  two 
facts :  First,  that  the  community  possesses  a  conmion 
heritage  of  memories,  whether  of  achievement  and 
glory  or  of  sacrifice  and  suffering ;  *  second,  the  actual 
consent,  the  positive  desire  of  the  individuals  to  live 
together  and  enjoy  and  transmit  the  heritage  they  have 
received. 

^  He  refers  with  malicious  joy  to  the  Slavic  admixture  in  the 
German,  especially  the  Prussian  population.  "Pour  tons  il  est 
bon  de  savoir  oublier." 

2".  .  .  un  Zollverein  n'est  pas  une  patrie." 

'  "  L'oubli,  et  je  dirai  meme  Terreur  historique,  sont  un  facteur 
essentiel  de  la  creation  d'une  nation,  et  c'est  ainsi  que  le  progres 
des  etudes  historiques  est  souvent  pour  la  nationalite  un  danger." 

*  It  is  implied  in  the  reasoning  of  the  preceding  note  that  the 
glory  and  sufferings  involved  may  be  mythical  without  impairment 
of  their  nation-making  efficacy. 


THE   NATIONAL  STATE  339 

However  unsatisfactory  Kenan's  formula  may  be  in 
final  analysis,  it  expresses  well  the  dominant  thought 
of  his  day.  The  national  state  was  coming  to  be  ex- 
plained in  terms  of  human  psychology. 

SELECT  REFERENCES 

Bluntschli,  Theory  of  the  State,  Book  II,  chaps,  i-vi;  Kleine 
Schriften,  I,  pp.  260-286;  II,  pp.  70-99.  Calhoun,  Disquisition 
on  Government.  Fichte,  Addresses  to  the  German  Nation  (trans- 
lation), chaps,  iv  and  viii.  Hegel,  Philosophy  of  History,  In- 
troduction. Lincoln,  Inaugural  Address,  1861,  and  Message  to 
Congress,  July  4,  1861.  Mazzini,  Essays,  pp.  1-22,  137-176. 
Renan,  "Qu^est-ce  qu'une  Nation  f'^  in  Discours  et  Conferences,  p. 
277.  Rose,  Nationality  in  Modem  History.  Savigny,  System 
des  heutigen  romischen  Rechts,  Band  I,  sees.  7-10.  Stahl,  Staats- 
lehre,  pp.  1-20,  131-168.  Davis,  PoUtical  Thought  of  Heinrich 
von  Treitschke,  chaps,  iv  and  vii. 


CHAPTER  IX 

SOCIETARIAN   POLITICAL  THEORY 

1.   The  Rise  of  Socialism  and  of  Sociology 

Parallel  with  the  movement  of  doctrine  concerning 
the  constitutional  and  national  developments  of  the 
nineteenth  century  a  current  of  speculation  took  pretty- 
well-defined  form  by  the  middle  of  the  century  under 
the  names  of  socialism  and  sociology.  Not  that  these 
two  terms  were  synonymous ;  they  designated,  on  the 
contrary,  systems  of  thought  that  were  quite  distinct 
from  each  other  in  character  and  in  purpose.  Yet 
regarded  from  the  point  of  view  of  the  history  of  political 
theories  they  have  this  in  common,  that  they  have  their 
origin  and  their  end  in  the  study  rather  of  society  than 
of  state  or  government,  but  produce  incidentally  strictly 
political  ideas  of  momentous  import. 

The  rise  of  socialism  was  closely  related  to  the 
economic  conditions  that  characterized  the  various 
stages  of  the  revolutionary  movements  in  Europe  from 
1789  on.  Sweeping  confiscations  of  property  such  as 
were  wrought  upon  the  church  and  the  nobility  in 
France  inevitably  raised  the  general  question  as  to 
the  right  of  property,  and  the  sufferings  of  the  poor 
united  with  the  intemperate  logic  of  the  intellectuals 
to  bring  about  an  abortive  insurrection  in  Paris,  headed 
by  Babceuf  and  directed  to  the  abolition  of  private 
ownership,  particularly  in  land.    This  was  in  1796. 

340 


INDUSTRIAL   REVOLUTION  341 

From  then  to  the  end  of  the  Napoleonic  period  France 
was  too  much  engaged  in  other  things  to  be  concerned 
about  sociahstic  or  commmiistic  theory  or  practice, 
though  Fourier  brought  out  in  1808  the  first  of  his 
influential  works. 

When  peace  came  in  1815  and  the  trying  period  of 
readjustment  followed,  a  new  factor  m  the  general 
economic  situation  became  at  once  predominant  and 
England  assumed  the  first  place  in  the  socialistic 
movement.  The  new  element  was  the  factory  system 
of  production.  In  England  what  is  now  known  as  the 
industrial  revolution  had  been  definitely  accomplished. 
Steam  power  and  machinery  had  given  to  the  great 
textile  and  iron  industries  the  form  and  organization 
that  in  substance  they  have  to-day.  Other  industries 
were  in  process  of  the  same  transformation.  Great 
shiftings  of  population  were  in  progress,  with  the 
attendant  tumult,  suffering  and  general  unrest.  Wage 
earners  in  the  large  establishments  found  themselves, 
so  far  as  their  living  was  concerned,  at  the  mercy  of 
the  owners,  and  found  all  efforts  to  better  their  condi- 
tion thwarted  by  laws  that  were  often  antiquated, 
often  brutal.  Trade  unions,  strikes  and  other  means 
for  the  maintenance  of  the  workingmen's  interests  sub- 
jected those  resorting  to  them  to  severe  penalties. 
Yet  the  antithesis  of  capitalists  and  wage  earners  was 
rapidly  hardening,  and  the  strife  of  these  two  new  social 
classes,  though  they  were  not  yet  wholly  self-conscious, 
was  a  conspicuous  feature  in  the  life  of  the  people. 

For  the  ills  of  the  times  increase  rather  than  allevia- 
tion was  indicated  in  the  teachings  of  the  capitalistic 


342  POLITICAL   THEORIES 

philosophers.  Malthus  was  suggesting,  if  not  prov- 
ing, that  the  forlorn  condition  of  the  working  masses 
was  permanent  and  inevitable.  Ricardo  was  proving 
that  the  dominant  right  of  the  landowner  and  the 
capitalist  in  the  products  of  industry  was  imbedded 
in  the  very  nature  of  created  things.  James  Mill 
was  coldly  formulating  the  rule  of  economic  existence, 
summed  up  in  pitiless  competition,  with  the  wall  al- 
ways for  the  weaker. 

It  was  against  the  spirit  of  these  doctrines,  as  well  as 
against  the  conditions  on  which  they  were  based,  that 
the  earliest  systematic  socialism  took  shape.  Robert 
Owen,  a  practical  factory  owner,  began  as  early  as  1800 
to  determine  the  relations  of  employer  and  employed 
by  cooperation  rather  than  competition,  and  he  and 
his  followers  preached  for  half  a  century  the  reorder- 
ing of  society  so  as  to  render  impossible  the  poverty 
and  wi'etchedness  of  the  wage-earning  classes.  Be- 
tween 1820  and  1840  the  Owenites  were  an  important 
element  in  the  forces  that  brought  about  reforming 
legislation  to  improve  the  general  situation.  The  laws 
that  made  trade  unions  criminal  were  repealed  (1825), 
and  in  1833  the  first  regulation  of  factories  in  the  in- 
terest of  the  laborers  was  embodied  in  the  statutes. 
These  measures  were  part  of  the  same  large  movement 
which  resulted  in  the  sweeping  political  reforms  of  the 
period.  In  spirit  they  were  Whiggish,  not  radical, 
and  were  permeated  with  the  characteristic  Whig 
solicitude  for  the  rights  of  property.  In  the  heat  of 
the  agitation,  however,  there  had  appeared  among 
the  supporters  of  the  laborers'  cause  systematic  and  well- 


FOURIER  AND   SAINT-SIMON  343 

argued  denials  of  all  just  claim  by  landlords  and  capi- 
talists to  their  rents  and  profits.  This  doctrine,  put 
forth  by  William  Thompson,  John  Gray,  Thomas 
Hodgskin  and  others,  made  little  permanent  impres- 
sion in  England,  but  became  fundamental  in  the  later 
revolutionaiy  socialism  of  the  French  and  Germans. 

The  same  decades  in  which  Owenism  most  flourished 
in  England  witnessed  the  rise  to  prominence  in  France 
of  the  systems  of  Charles  Fourier  and  Henri  de  Saint- 
Simon.  The  most  influential  works  of  both  these 
philosophers  appeared  m  the  twenties,  and  the  im- 
portance of  their  followers  was  most  marked  m  the 
thirties  and  forties.  Fourierism  and  Saint-Simonism 
approached  social  reform,  not  like  Owenism  from  the 
practical  side,  but  by  the  way  of  philosophic  specula- 
tion. The  purpose  to  get  rid  of  the  poverty  and  wretch- 
edness that  threatened  society  with  disaster  animated 
both  Fourierists  and  Saint-Simonians.  Only  the  latter,^ 
however,  fomid  possessors  of  great  wealth  to  be  the 
chief  obstacles  to  improvement  and  set  up  demands 
that  the  old  ideas  about  the  sacredness  of  their  prop- 
erty should  be  discarded. 

As  the  agitation  about  constitutional  and  nationalistic 
reform  led  up  to  the  great  convulsion  of  1848,  the  vari- 
ous movements  on  the  Continent  for  social  improve- 
ment assumed  definitely  the  character  of  political 
socialism.  Owen,  Saint-Simon,  Fourier  and  others  of 
their  time  had  sought  to  effect  the  renovation  of  society 

^  For  a  distinction  between  Saint-Simon  himself  and  the  Saint- 
Simonians  in  this  matter,  see  Menger,  Right  to  the  Whole  Produce  of 
Labor,  p.  67. 


344  POLITICAL  THEORIES 

through  the  voluntary  adoption  of  their  various  re- 
medial schemes  by  the  convinced  better  classes.  But 
landowners  and  capitaHsts  manifested  Httle  disposition 
to  abandon  their  rents  and  profits  for  the  dim  chances 
of  social  peace  that  the  projects  of  the  reformers  offered. 
The  laboring  class  found  little  improvement  in  the  con- 
ditions of  their  life.  Accordingly  there  appeared  the 
demand  for  the  overthrow  of  the  existing  system  by 
whatever  means  were  necessary,  and  the  exaltation  of 
the  liitherto  suppressed  class  to  the  first  place  in  the 
political  and  economic  organization  of  the  nation.  The 
good  of  the  laborers  must  be  made,  it  was  held,  the 
chief  end  of  government,  and  society  must  take  mto 
its  own  hands  the  economic  functions  which  land- 
owners and  capitalists  had  abused  for  their  selfish 
ends. 

In  and  about  1840  Louis  Blanc  and  P.  J.  Proudhon 
promulgated  doctrines  that  on  different  lines,  but  with 
like  uncompromising  directness,  asserted  the  right  of 
labor  to  the  product  of  its  effort  regardless  of  the  claims 
of  idle  landlords  and  capitahsts.  Blanc's  teaching 
looked  to  a  democracy  that  should  supplant  the  capi- 
talistic monarchy  of  Louis  Philippe ;  Proudhon  repudi- 
ated all  forms  of  government  alike  and  avowed  him- 
self an  anarchist.  The  revolution  of  1848  in  France 
brought  Louis  Blanc  and  his  projects  into  much 
prominence,  but  also  to  failure  and  exile. 

Meanwhile  the  industrial  conditions  responsible 
for  the  EngHsh  and  French  doctrines  that  have  been 
noticed  were  extending  to  central  Europe  and  pro- 
ducing  eager   and   able    German   advocates'  of   the 


BEGINNING   OF  MARXISM  345 

doctrines.  In  January^  1848;  on  the  eve  of  the  revolu- 
tionary outbreak,  Karl  Marx  and  Frederick  Engels 
formulated  the  famous  Communist  Manifesto,  which 
may  properly  be  regarded  as  marking  the  definitive 
entrance  of  revolutionary  socialism  into  politics  and 
political  theory.  The  document  contained  no  doctrine 
that  had  not  been  set  forth  before ;  but  the  form  and 
sequence  in  which  the  prmciples  were  arranged  were 
admirably  adapted  to  the  purposes  of  a  political  plat- 
form. Particularly  effective  was  the  portrayal  of  the 
antagonism,  immovably  fLxed  in  the  nature  of  things, 
between  bourgeoisie  and  proletariat  —  the  class  war 
that  would  shape  all  social  life  till  the  final  triumph  of 
the  proletariat  should  produce  "an  association  in  which 
the  free  development  of  each  is  the  condition  for  the 
free  development  of  all. 7 

With  the  economic  doctrine  that  was  at  the  base  of 
all  the  forms  of  socialistic  theory  it  is  not  the  purpose 
to  deal  in  this  place.  The  relation  of  this  theory  to 
the  philosophy  of  government,  however,  will  be  ex- 
amined in  the  following  sections.  At  present  it  is 
necessary  to  turn  to  the  development  of  sociology, 
which  had  begun  to  take  shape  at  the  very  time  when 
socialism  was  passing  through  its  initial  stages. 

A  distinction  between  society  and  state  had  pervaded 
the  speculation  of  philosophers  more  or  less  consciously 
from  the  earhest  times.  The  life  of  human  aggregates 
had  presented  phases  that  were  perceived  to  be  remote 
from  the  field  occupied  by  government  and  that  were 
recognized  at  times  to  be  more  significant  than  the 
political  phases.     During  the  fifteenth,  sixteenth  and 


346  POLITICAL  THEORIES 

seventeenth  centuries  the  state,  as  centred  in  the 
absolute  monarch,  dominated  social  philosophy.  With 
the  revolutionary  eighteenth  a  reversal  of  the  situa- 
tion began.  Vico,  Montesquieu,  the  Physiocrats, 
Adam  Smith  and  the  economists,  with  also  the  jurists 
of  the  natural  and  the  common  law,  brought  into  the 
foreground  the  non-governmental  forces  that  operated 
in  the  life  of  the  peoples.  This  was  the  field  that  was 
cultivated  by  Saint-Simon  and  the  other  founders  of 
socialism.  Sociology  was  their  real  subject ;  but  the 
name  itself  and  the  application  of  it  to  a  pretty  clearly 
defined  place  among  the  sciences  were  due  to  Auguste 
Comte,  a  one-time  disciple  of  Saint-Simon. 

Comte's  Positive  Philosophy  in  its  first  general  out- 
line appeared  in  1824  and  became,  with  its  full  develop- 
ment, an  influence  of  incalculable  importance  in  the 
later  thought  of  the  century.  He  assigned  to  sociology, 
indeed,  a  sphere  so  all-embracing  that  its  later  votaries 
had  to  contract  it  materially;  but  the  matter  and 
method  of  the  science  were  largely  determined  by  his 
system.  The  terminology  introduced  by  him  is  the 
current  coin  of  social  and  political  discussion  to-day. 
Order  and  progress,  social  statics  and  social  dynamics, 
military  society  and  industrial  society,  egoism  and 
altruism,  —  are  all  familiar  pairs  of  antithetic  terms 
that  owe  their  vogue  to  Comte's  unexcelled  faculty  for 
generalization.  They  suggest  how  successfully  he 
combined  in  his  great  system  the  dogmatic  and  the 
historical  method,  and  found  a  place  in  the  evolution 
of  humanity  for  both  individualistic  and  socialistic 
doctrines  and  institutions. 


EARLY   SOCIOLOGY  347 

Herbert  Spencer,  whose  Synthetic  Philosophy  was 
substantially  before  the  world  at  the  end  of  our  period, 
gave  to  sociology  a  content  that  was  much  narrower  than 
that  which  Comte  had  given  it,  but  made  it  corre- 
spondingly more  definite  and  manageable.  The  in- 
debtedness of  Spencer  to  Comte,  chiefly  indirect  and 
unconscious,  is  readily  discernible,  but  there  are  at  the 
same  time  even  more  obvious  the  strongly  marked 
independent  features  of  the  later  work.  Evolution, 
recognized  with  balance  and  moderation  by  the  French- 
man, was  the  whole  spring  of  the  Englishman's 
philosophy.  Moreover,  this  evolution  was  affected 
by  the  biological  principles  that  were  so  brilliantly 
demonstrated  by  Darwin  in  his  epoch-making  works 
of  the  fifties.  The  Darwinian  influence  contributed 
much  to  give  to  the  Spencerian  sociology  a  certain 
materialistic  quality.  This,  with  its  vast  research 
among  the  institutions  of  primitive  societies  and  its 
bumptious  though  illogical  individualism,  set  it  off 
with  great  distinctness  from  the  philosophy  of  Comte. 
Spencer's  thought  was,  however,  much  more  in  har- 
mony with  the  spirit  of  the  time  than  the  Frenchman's 
emotional  and  religious  vagaries  in  his  later  days,  and 
Spencer  became  the  starting  point  of  all  further  progress 
in  social  science.  His  significance  in  the  philosophy  of 
society  was  in  marked  contrast  with  the  weakness  of 
his  influence  on  the  theory  of  the  state,  wherein  he  tena- 
ciously maintained  an  individualism  that  steadily  lost 
ground  before  the  rising  tide  of  socialistic  doctrine. 


348  POLITICAL   THEORIES 

2.   Owen  and  Fourier 

When  in  the  latter  half  of  the  nineteenth  century 
•the  revolutionary  dogmas  of  Marx  and  his  school  had 
become  most  conspicuous  in  the  social  movement,  the 
earlier  systems  became  known,  by  way  of  distinction, 
as  Utopian  Socialism.  Under  this  term  were  included 
the  doctrines  and  projects  of  Owen,  Saint-Simon,  Fou- 
rier and  others.^  The  name  was  in  some  sense  justified 
by  the  ideal  societies  that  were  advocated  and  put  to 
a  practical  test  by  these  thinkers  and  their  followers. 
But  while  Plato  and  More  and  Campanella  had  con- 
structed their  fanciful  commonwealths  with  no  expecta- 
tion of  their  being  realized,  the  nineteenth  century 
Utopians  were  profoundly  convinced  that  their  several 
systems  were  destined  in  no  distant  future  to  effect  an 
entire  transformation  of  social  life.^ 

In  the  governmental  reforms  that  were  so  much  at 
issue  in  their  time  these  philosophers  had  little  or  no 
interest.  The  political  would  disappear  with  the  social 
evils  when  society  should  be  reorganized  on  the  proper 
principles.  All  the  schools  found  in  history  evidence 
that  the  normal  course  of  mankind  in  progress  toward 
its  goal  had  been  checked  and  deflected  by  ignorance 
and  error  concerning  the  principles  of  group  life;  all 
held  that  a  correct  understanding  of  those  principles 
would  bring  naturally  the  resumption  of  progress. 

All  agreed  that  an  important,  if  not  the  most  im- 

1  Cabet,  Lamennais  and  the  "  Christian  Socialists "  might 
properly  fall  within  this  class. 

"  Cf.  Owen,  Book  of  the  New  Moral  World,  Preface  and  Introduc- 
tion.    Saint-Simon,  CEuvres,  t.  41,  p.  121  et  seq. 


UTOPIAN   SOCIALISM  349 

portant,  source  of  the  ills  that  afflicted  mankind  was 
poverty  and  its  consequences.  All  agreed  that  the 
prevalence  of  poverty  was  due  largely,  if  not  exclusively, 
to  the  exaggerated  recognition  of  self-interest  as  the 
mainspring  of  human  action,  and  that  the  existing 
system  of  industiy  and  commerce,  based  upon  this 
principle  and  operating  by  unrestricted  competition, 
must  unendingly  increase  the  misery  of  the  race.  All 
scored  the  injustice  of  unearned  wealth  as  vehemently 
as  they  lamented  the  sufferings  of  undeserved  poverty. 
All  denounced  the  existing  capitalistic  system.  Fou- 
rier, however,  found  capital  indispensable,  subject  to 
the  regulations  imposed  by  his  system;  Owen  main- 
tained that  when  his  simple  rational  laws  for  the  crea- 
tion of  what  is  good  for  men  should  prevail,  there  would 
be  no  "useless  private  property";  but  the  Saint- 
Simonians  announced  as  the  most  important  means  to 
the  realization  of  social  justice  that  the  right  to  un- 
earned property,  so  far  as  it  depended  on  inheritance, 
must  be  abolished. 

The  error  that  has  led  men  astray,  so  the  Utopians 
all  argued,  has  been  the  assumption  that  nature  designed 
the  individual  rather  than  the  group  to  be  the  basis  of 
social  existence.  Society  is  not  a  deliberately  created 
device  of  previously  isolated  men  for  the  promotion  of 
their  several  selfish  interests ;  it  springs  from  the  feel- 
ing not  from  the  reason  of  mankind.  Sympathy  —  the 
sense  of  alikeness  —  brings  men  inevitably  together ; 
benevolence  —  willing  the  good  of  all  —  is  the  natural 
principle  of  association.  These  basic  factors  have  been 
almost  wholly  lost  sight  of  in  the  theory  and  practice 


350  POLITICAL  THEORIES 

of  social  life.  Rivalry,  competition,  strife  and  war, 
with  the  endless  exploitation  of  the  weaker  by  the 
stronger,  have  become  the  accepted  methods  for  de- 
termining the  relations  of  individuals  and  of  peoples 
to  one  another.  To  change  all  this  and  restore  the 
reign  of  nature's  peace  and  order  to  humanity,  is  the 
proclaimed  purpose  of  all  the  Utopians. 

The  projects  of  the  various  schools  for  the  achieve- 
ment of  this  end  had  some  things  in  conmion,  but  were 
for  the  most  part  widely  divergent  from  one  another. 
Owen  and  the  Owenites  devoted  themselves  chiefly 
to  the  improvement  of  conditions  in  the  industrial 
world.  Philanthropic  devices  for  the  benefit  of  the 
laborers  were  urged  by  precept  and  by  example  upon 
the  obdurate  British  factory  owners,  and  the  legisla- 
tion that  was  at  last  secured,  against  the  bitter  opposi- 
tion of  the  laissez-faire  economists,  received  hearty 
support  from  the  Owenites.  The  most  characteristic 
feature  of  their  work,  however,  was  the  establishment 
among  the  working  classes  of  cooperative  societies  for 
the  supply  of  their  needs.  This  form  of  voluntary  as- 
sociation for  the  production  and  exchange  of  commodi- 
ties attained  great  prominence  and  wide  vogue  in  the 
twenties  and  thirties.  Cooperation  was  hailed  as  the 
much-desired  expedient  for  escaping  the  evils  of  the 
strife  between  capital  and  labor.  The  success  of  this 
device  confirmed  Owen  in  his  belief  that  he  had  solved 
the  problem  of  society  in  general,  and  he  set  forth  with 
fanatical  fervor  his  scheme  of  a  reorganized  world.^ 

^  The  scheme  is  embodied  in  a  "Universal  Code  of  Laws,"  which 
he  says  must  supersede  "  the  accumulation  of  nonsense  and  absurdity 


THE   OWENITE   COMMUNITY  361 

The  unit  of  this  new  order  is  to  be  a  community  of 
families  numbering  from  500  to  3000  persons,  Hving  on 
a  tract  of  land  large  enough  to  support  the  members. 
The  internal  affairs  of  the  community  are  to  be  directed 
by  a  council  consisting  of  all  the  members  from  thirty 
to  forty  years  of  age ;  relations  with  other  communities 
are  in  the  charge  of  a  like  council  of  the  members  from 
forty  to  sixty  years.  Unions  of  these  primary  com- 
munities will  be  constituted  under  similar  councils 
for  larger  areas.  All  the  councils  are  to  act  in  conform- 
ity to  the  code  that  Owen  formulates,  the  basis  of 
which  is  the  fundamental  law  of  nature  that  the  indi- 
^ddua^s  character  is  not  formed  by  himself,  but  is  the 
result  of  the  circumstances  and  education  to  which  he  has 
been  subjected.  The  chief  prescriptions  of  the  code 
are  those  that  insure  the  "same  general  routine  of  educa- 
tion, domestic  teaching  and  employment "  to  all  children 
of  both  sexes,  who  are  put  from  birth  under  the  care  of 
the  community.  Members  who,  despite  their  educa- 
tion, fail  to  act  rationally  are  to  be  removed  to  the 
hospitals  for  physical,  mental  or  moral  invalids,  where 
their  cure  is  to  be  effected  by  the  mildest  possible  treat- 
ment. If  any  directing  council  contravenes  the  funda- 
mental laws  of  human  nature  it  will  be  supplanted 
by  a  new  one  consisting  of  the  members  of  the  com- 
munity between  twenty  and  thirty  or  over  sixty  years 
of  age.  It  is  not  explained  how  this  substitution  is  to 
be  effected,  and  there  is  nowhere  in  the  scheme,  save 

in  what  are  called  codes  of  law,  formerly  or  now  in  practice  through- 
out the  irrational-made  nations  of  the  world.  .  .  ."  —  Book  of  the 
New  Moral  World,  part  vi,  pp.  83-7. 


352  POLITICAL   THEORIES 

in  the  clause  referring  to  the  hospitals,  any  suggestion 
of  coercive  government.  What  is  to  become  of  the 
existing  political  systems  of  the  world  is  not  discussed, 
but  the  thought  is  not  obscure  that  they  will  fade 
imperceptibly  away  in  the  light  of  the  new  order.^ 
Fourier's  project  for  escape  from  the  evils  of  civiliza- 
tion took  shape  in  that  form  of  communal  life  which 
became  famous  as  the  "phalange."  His  primary 
concern  was  with  agricultural  rather  than  industrial 
production,  with  the  household  rather  than  the  factory. 
The  true  principles  of  association  he  worked  out  in  an 
elaborate  system  wherein  much  acute  and  suggestive 
reflection  was  made  useless  by  incoherent  presentation 
and  pedantic  terminology.^  The  outstanding  feature 
of  his  social  philosophy  was  the  doctrine  of  what  he 
called  "passional  attraction"  (attraction  passionelle). 
According  to  this  doctrine  the  passions  or  feelings  of 
men,  rather  than  their  reason,  must  be  considered  the 
basis  of  every  kind  of  association,  and  particularly  of 
that  cooperative  union  through  which  the  primary 
needs  of  physical  life  are  satisfied.  Naturally  all  men 
dislike  the  incessant,  monotonous  labor  that  produces 
the  necessities  of  life.  Naturally  every  man  finds 
relative  if  not  absolute  pleasure  in  some  species  of 

1  Owen's  Book  of  the  New  Moral  World  is  dedicated  to  King 
William  IV,  who,  with  other  royal  personages,  displayed  much 
interest  in  Owen  till  the  reformer's  unconventional  views  on  re- 
ligion and  the  relations  of  the  sexes  made  further  public  interest 
inexpedient. 

2  For  our  purpose  his  Theorie  de  V  unite  universelle  is  all  that 
it  is  necessary  to  consult.  AU  his  important  doctrine  is  there. 
The  work  was  first  published  in  1822  under  the  title  U Association 
domestique  agricole. 


FOURIER'S  PHALANX  353 

labor  or  in  some  alternation  in  species  of  labor.  Igno- 
rance or  disregard  of  these  basic  facts  accounts  for  the 
evils  of  social  life  whether  in  ancient  or  in  modern 
times.  Slavery,  serfage  and  the  wages  system,  with 
the  governmental  institutions  that  accompany  and 
sustain  them/  are  but  different  forms  of  the  distortion 
that  results  from  the  effort  of  certain  classes,  by  de- 
liberate association,  to  put  all  the  repellent  labor  of 
social  life  upon  others  and  retain  the  agreeable  for 
themselves  alone. 

The  way  out  is  to  transform  the  social  organization 
in  the  light  of  the  principles  that  Fourier  has  discovered. 
Labor  must  be  made  attractive,  and  therefore  produc- 
tive beyond  all  comparison  with  earlier  ages.  Every 
variety  of  taste,  talent  and  other  endowment  must  be 
recognized  and  utilized  in  the  proportion  that  science 
shows  to  be  requisite  for  the  harmony  of  the  whole  and 
the  happiness  of  the  individual  members.  The  typical 
association  for  this  end  is  a  group  of  five  hundred 
families,  fifteen  to  eighteen  hundred  persons,  volun- 
tarily united  in  a  community  which  Fourier  called 
a  "phalanx."^  It  should  include  capitalists,  laborers 
and  persons  of  talent,  each  contributing  as  he  is  able 
to  the  productiveness  and  agreeableness  of  the  com- 
munity's life.  Through  the  organization  and  specializa- 
tion of  the  fimctions  essential  to  the  industries  carried 
on,  occupations  suited  to  every  taste  would  be  avail- 

^  But  Fourier  makes  very  few  references  of  any  kind  to  political 
matters. 

^  The  features  of  the  phalanx  are  described  repeatedly  in  all 
of   Fourier's   works.     They   may   be  found   in   the   Selections  by 
Franldin  and  Gide,  especially  p.  137,  and  in  Brisbane's  volume, 
Theory  of  Social  Organization,  part  ii,  pp.  81  et  seq. 
2a 


354  POLITICAL  THEORIES 

able,  with  the  result  that  every  member  would  labor 
with  the  zest  of  pleasure.  "Passional  attraction" 
rather  than  competitive  greed  for  gain  would  rule 
the  community's  life.  No  wages  should  appear  in  the 
system.  Every  species  of  necessary  labor  must  be 
performed  by  the  members,  participation  of  all  in  the 
generally  repulsive  kinds  being  stimulated  in  various  in- 
genious ways.  Every  member  of  the  commmiity  must 
be  a  shareholder,  whose  part  in  the  profits  shall  be 
determined  in  accordance  with  a  scale  that  assigns  a 
fixed  proportion  to  capital,  to  labor  and  to  talent. 
But  every  member  must  be  guaranteed  a  minimum 
return  sufficient  to  free  him  from  anxiety  for  himself 
or  his  family,  and  every  member  must  possess  the  right 
to  labor  in  such  occupations  as  are  adapted  to  his  pref- 
erence and  his  capacity. 

With  the  establisliment  of  such  a  system  of  social 
organization  Fourier  beheves  that  poverty  will  dis- 
appear, ti-ue  liberty  will  be  assured  to  every  individual, 
the  real  natural  rights  of  man  will  be  recognized,  hap- 
piness and  order  will  be  universal,  and  consequently 
government,  so  far  at  least  as  its  coercive  activities 
are  concerned  —  armies,  scaffolds,  prisons,  courts  of 
justice  —  will  have  no  longer  any  cause  for  existence.-^ 
The  trend  of  Fourier's  thought  is  to  anarchism.^  There 
never  appears  in  his  writings,  however,  the  slightest 
suggestion  of  revolutionaiy  violence.  His  convic- 
tion is  unfaltering  that  the  great  truths  he  has  re- 
vealed will  make  their  way  by  their  own  virtue. 

1  C/.  Brisbane,  op.  cit.,  part  i,  p.  148. 

2  Cf.  Gide,  op.  cit.,  p.  22. 


SOCIETARIAN   POLITICAL  THEORY  355 

3.  Saint-Simonian  Doctrine 

The  chief  writings  of  Henri  de  Saint-Simon  on  social 
reform  were  produced  during  the  last  ten  years  of  his 
life,  1815-25.  After  his  death  a  community  of  his 
disciples  carried  on  at  Paris  an  active  agitation  for 
the  spread  of  his  doctrines  until  1831,  when  internal 
dissension  and  the  action  of  the  government  terminated 
the  formal  existence  of  the  school.  Between  the  views 
actually  enunciated  by  Saint-Simon  and  those  formu- 
lated by  his  successors,  of  whom  Enfantin  was  the  recog- 
nized head,  there  is  enough  difference  of  form  and  sub- 
stance to  warrant  the  distinction  usually  made  in  the 
expression  "Saint-Simon  and  the  Saint-Simonians."^ 

The  Saint-Simonian  doctrine  presents  no  scheme  so 
concrete  as  that  of  Fourier  or  even  that  of  Owen  for  the 
reformed  organization  of  society.  On  the  other  hand 
it  is  far  more  profound  and  coherent  in  its  underlying 
philosophy.  It  embodies  a  remarkable  interpretation 
of  history  and  displays  extraordinary  analytical  power 
in  the  formulation  of  its  dogmas. 

Among  the  doctrines  preached  by  Saint-Simon 
himself,  the  supreme  significance  of  productive  in- 
dustry and  those  engaged  in  it,  as  compared  with  the 
non-productive  or  positively  destructive  (i.e.,  military) 
activities  and  classes,  was  at  the  basis  of  all  his  thought. 

•  ^  Most  of  the  writings  of  Saint-Simon  and  many  of  those  of 
his  disciples,  together  with  accounts  of  his  life  and  the  affairs  of 
his  followers,  are  collected  in  forty-seven  volumes  under  the  title, 
CEuvres  de  Saint-Simon  et  d' Enfantin.  The  additional  literature 
concerning  Saint-Simonism  is  extensive.  For  our  particular  point 
of  view  the  little  volume  by  Janet,  Saint-Simon  et  le  Saint- 
Simonisme,  is  most  useful. 


356  POLITICAL  THEORIES 

He  never  wearied  of  exalting  the  workers  and  dispar- 
aging the  idlers  of  society.  A  celebrated  jeu  d^esprit, 
that  came  to  be  known  as  Saint-Simon's  "Parable/' 
gravely  calculated  the  relative  effects  on  the  nation  that 
would  result  from  the  loss,  in  the  first  case,  of  the  three 
thousand  leading  men  of  science,  art  and  industry, 
and  in  the  other  case,  of  all  the  near  relatives  of  the 
king,  all  the  chief  executive,  miHtary  and  judicial  offi- 
cials, and  the  ten  thousand  wealthiest  men  of  leisure. 
The  conclusion  was  that  in  the  first  case  France  would 
for  at  least  a  generation  have  no  important  place  among 
the  civilized  peoples  of  the  earth,  while  in  the  second 
case  there  would  be  no  effect  at  all  beyond  a  widespread 
regret  at  the  disappearance  of  so  many  Frenchmen.^ 
Saint-Simon  proved  to  his  own  satisfaction  that  the 
industrial  class  was  the  one  useful  class  in  society; 
that  this  must  eventually  become  the  only  class; 
and  that  the  sole  criterion  of  excellence  in  legislative 
and  administrative  measures  of  the  government  was 
their  favorable  effect  on  industry.^  The  progress  of 
social  weKare  depended  on  the  advancement  of  science, 
the  fine  arts  and  the  useful  arts  and  to  this  advancement 
the  contribution  of  the  idle  classes  was  less  than  nothing ; 
for  by  their  influence  in  the  government  they  saddled 

1  CEuvres,  Vol.  XX,  p.  17.  Saint-Simon  was  prosecuted  for  this 
essay,  but  was  acquitted  (1820).  For  the  same  distinction  between 
the  travailleurs  and  the  oisijs  that  was  developed  at  the  same  time 
by  Auguste  Comte  and  Ch.  Dunoyer,  see  Janet,  op.  ciL,  p.  28. 
Janet  properly  notes  the  important  fact  that  this  distinction  be- 
tween workers  and  idlers  was  not  at  all  a  distinction  between 
labor  and  capital.  Bankers  and  manufacturers  were  among  the 
■workers ;   rentiers  and  great  landowners  were  among  the  idlers. 

»  CEuvres,  XIX,  74. 


SAINT- SIMONIAN   GOVERNMENT  357 

themselves  on  the  nation  and  diverted  to  their  support 
the  earnings  and  the  energies  of  the  producing  classes 
—  the  men  of  science,  of  art  and  of  industry  {hs  savants, 
les  artistes  et  les  artisans).  With  the  government  thus 
in  the  hands  not  of  the  producing  but  of  the  non- 
producmg  class,  society  presented  to  the  reflecting 
mind  the  spectacle  of  a  world  upside  down. 

The  new  social  order  must  rest  on  the  political  leader- 
ship of  the  useful  class.  Capacity  rather  than  posses- 
sions must  become  the  qualification  for  control  of  the 
pubUc  service.  The  producers  must  supplant  the 
mere  consumers  —  the  bees  the  drones  —  in  political 
authority.  For  the  realization  of  which  end  in  France 
Saint-Simon  sketched  out  the  reorganized  political 
system.  Without  requhing  the  abolition  of  the  mon- 
archy, he  called  for  a  government  with  supreme  power  in 
a  new  species  of  parliament.  This  body  should  include, 
first,  a  house  of  mvention,  consisting  of  civil  engineers, 
poets  (ou  autres  inventeurs  en  litterature),  painters, 
sculptors,  architects  and  musicians;  second,  a  house 
of  examination,  consisting  of  physicists  and  mathe- 
maticians ;  and  third,  a  house  of  execution,  consisting 
of  captains  of  industry  {chejs  des  maisons  dHndustrie), 
unsalaried,  and  duly  apportioned  among  the  various 
kinds  of  business.  The  first  house  would  present  proj- 
ects of  law,  the  second  would  examine  and  pass  upon 
them,  and  the  third  would  adopt  them. 

Saint-Simon  readily  admitted  that  this  scheme  would 
be  called  fantastic  and  Utopian,  but  he  submitted  in 
its  defence  a  highly  suggestive  historical  argument,  in 
which    appeared    many    anticipations    of    economic. 


358  POLITICAL  THEORIES 

socialistic   and   sociological   theory   that   have   since 
become  commonplace.^ 

Various  expansions  and  modifications  of  this  political 
program  were  formulated  by  Saint-Simon,  but  he  never 
ceased  to  manifest  his  feeling  that  both  political  and 
economic  considerations  must  be  supplemented  and 
controlled  by  those  of  a  purely  spiritual  character  if 
social  reform  was  to  be  assured.  The  full  expression 
of  this  feeling  was  given  in  the  N&w  Christianity, 
wiitten  in  the  year  before  his  death.^  This  brilliant 
essay  embodied  a  bitter  and  eloquent  attack  on  both 
Catholics  and  Protestants  for  having  lost  sight  of  the 
fimdamental  principle  of  Christianity  and  of  religion 
itself.  The  new  church  must  stand,  he  holds,  on  the 
dogma  that  the  end  of  religion  is  to  ameliorate  as  rapidly 
as  possible  the  condition  of  the  poor  —  the  most 
numerous  class  of  society.  Social  righteousness  can 
be  attained  only  through  a  social  organization  that  is 
adapted  to  this  end. 

1  (Euvres,  XX,  especially  pp.  50  et  seq.  This  volume  consists 
of  the  periodical  called  UOrganisateur,  conducted  with  many  vicis- 
situdes by  Saint-Simon  and  his  disciples  in  1819-20.  The  reader 
will  not  fail  to  see  much  in  this  volume  that  suggests  the  philosophy 
of  Comte  and  the  history  that  was  produced  by  Niebuhr,  Thierry 
and  their  school  in  the  first  half  of  the  century,  with  a  strong  leaning 
to  economic  and  social  interest  and  interpretations.  Comte  and 
Thierry  were  both  Saint-Simonians. 

2  Saint-Simon  died  in  1825.  The  Nouveau  Christianisme  is  in 
(Euvres,  XXIII,  99.  It  was  written  apparently  to  carry  out  a  pur- 
pose announced  in.his  critical  preface  to  the  contribution  of  Auguste 
Comte  to  the  "Catechisme  des  Industriels."  Saint-Simon  says 
of  his  disciple's  work :  "...  notre  eleve  n'a  traite  que  la  partie 
scientifique  de  notre  systeme,  mais  .  .  .  il  n'a  point  expose  sa 
partie  sentimentale  et  religieuse.  .  .  .  Nous  remedierons  autant 
qu'il  nous  sera  possible  a  cet  inconvenient.  .  .  ."  —  Op,  cit., 
XXXVIII,  4. 


SAINT- SIMONIAN   DOCTRINE  359 

It  was  this  doctrine  of  the  master  that  determined  the 
course  of  his  disciples  after  his  death.  They  constituted 
themselves  into  a  society  for  the  practice  and  promulga- 
tion of  the  Saint-Simonian  religion,  and  for  six  years, 
until  dissolved  by  the  police,  this  society  was  a  con- 
spicuous centre  of  radical  agitation.  Its  leaders  gave 
to  their  master's  doctrines  an  exposition  that  is  superior 
to  his  own  in  coherence  and  clarity,  and  they  de- 
veloped some  of  his  ideas  into  dogmas  that  were  more 
in  the  line  of  the  later  socialism  than  anything  dis- 
tinctly enunciated  by  himself.  Their  system  was 
substantially  as  follows.^ 

History  shows  mankind  passing  alternately  through 
social  conditions  that  may  be  designated  as  respectively 
organic  and  critical.  The  pagan  world  to  the  time  of 
Socrates  and  the  Christian  world  to  the  time  of  Luther 
were  organic ;  the  post-Socratic  period  was  critical  till 
Catholic  Christianity  brought  a  new  organic  era, 
which  was  destroyed  in  turn  by  the  Lutheran  reform 
and  the  revolution.  It  is  time  for  the  reordering  of 
society  in  the  organic  kind,  and  Saint-Simon  has  re- 
vealed the  way. 

Through  this  succession  of  epochs  humanity  has  been 
making  its  way,  however  blindly,  to  a  single  goal  —  the 
association  of  all  men  in  all  their  relations  for  the  peace- 
ful exploitation  of  the  material  world  for  the  satisfac- 
tion of  their  needs.  In  past  ages,  both  the  organic 
and  the  critical,  there  has  ever  been  the  exploitation 
of  man  rather  than  of  nature,  and  the  principle  of  an- 

^  The  exposition  of  this  system,  chiefly  by  Bazard,  with  some 
contributions  by  Enfantin,  is  to  be  found  in  (Euvres,  XLI  and  XLII. 


360  POLITICAL   THEORIES 

tagonism  has  operated  to  thwart  the  prevalence  of 
association.  Pagan  society  was  based  on  the  exploita- 
tion of  man  by  man  through  slavery,  and  for  the  sake 
of  slaves  war  was  general.  Mediaeval  society  practised 
the  same  exploitation  through  serfdom,  and  war  for 
the  dominion  over  the  land  that  the  serfs  cultivated 
was  general.  The  revolution  has  abolished  the  last 
vestige  of  serfdom,  but  the  new  industrial  system  has 
brought  into  play  the  old  propensity,  and  those  who 
have  retained  the  property  rights  developed  in  feudal 
times  are  enabled  to  exploit  the  propertyless  classes 
through  the  wage  system.  To  remedy  this  particular 
wrong  the  Saint-Simonians  look  to  a  complete  trans- 
formation of  the  idea  of  property,  the  first  step  in  the 
process  being  the  abolition  of  the  right  of  inheritance.^ 
Society  must  soon  become  an  association  of  workers 
{travailleurs)  and  the  control  of  the  means  of  produc- 
tion must  go  to  those  who  can  use  them,  not  to  any 
who  claim  them  by  mere  right  of  birth. 

This  conception  of  the  future  of  property  is  but  one 
feature,  however,  of  the  new  social  structure  that  Saint- 
Simonism  is  to  introduce.  The  complete  evolution 
(for  no  violent  overthrow  of  existing  institutions  is  to 
be  for  a  moment  thought  of)  will  show  a  world  society 
based  upon  three  factors  that  dominate  the  life  of  man- 
kind. These  are  religion,  science  and  industry,  corre- 
sponding to  the  principles  of  love,  wisdom  and  power, 
and  thus  to  the  spiritual,  the  intellectual  and  the  in- 
dustrial qualities  (capacites)  of  the  individual.  In 
every  community  the  three  classes  of  the  population 

1  CEuvres,  XLI,  238  et  seq.  and  passim. 


INDUSTRY,   SCIENCE,   RELIGION  361 

determined  by  the  predominance  of  these  three  quali- 
ties respectively  will  carry  on  in  harmony  the  activities 
requisite  to  the  perfect  hfe.  Under  such  a  condition 
society  will  be  "organized"  —  will  be  a  true  association 
instead  of  a  confused  mass  of  struggling  and  hostile 
groups  and  individuals.  The  intolerable  conditions 
in  the  critical  period  that  is  ending  have  been  due  to 
the  exaltation  of  the  principle  of  individualism  and  to 
the  general  prevalence  of  competition,  especially  in 
the  industrial  field.  For  this  will  now  be  substituted 
a  regime  of  cooperation  for  the  ends  of  society  as  a 
whole.  Industry  and  science  will  work  harmoniously 
together  for  the  best  employment  of  the  instruments 
of  production,  which  society  alone  must  control.  Re- 
ligion, finally,  will  be  the  supreme  coordinating  and 
directing  force  in  the  system. 

The  Saint-Simonian  community  was  thus  in  a  sense-, 
a  theocracy ;  at  all  events  it  was  ruled  by  an  absolute 
priesthood.  Religion,  however,  meant  to  the  Saint- 
Simonians  something  quite  different  from  what  it 
meant  to  the  Christian.  It  comprehended  the  whole 
realm  of  the  feelings  or  emotions  as  distinct  from  the 
intellect.  It  was  manifest  particularly  in  love  and 
sympathy.  But  love  and  sympathy,  rather  than  reason 
and  force,  were  held  to  be  the  real  bond  of  human  so- 
ciety.^ From  this  the  conclusion  followed  that  the 
government  of  a  properly  constituted  association  fell 
necessarily  to  the  class  in  whom  the  feelings  were  most 
developed.     The  functions  of  this  governing  body  were 

'  This  doctrine  is  worked  out  pretty  fully  in  op.  cit.,  XLII,  338 
et  aeq.,  413  et  seq. 


362  POLITICAL  THEORIES 

strongly  suggestive  of  those  assigned  by  Plato  to  his 
philosopher  guardians.  The  end  kept  in  view  and  con- 
ditioning all  their  activity  was  expressed  in  terms  that 
embodied  the  Saint-Simonians'  most  famous  formula : 
"to  reaHze  and  maintain  the  association  of  all  the  men  on 
the  surface  of  the  globe,  m  which  each  shall  be  placed 
according  to  the  capacity  that  he  shall  have  received 
from  God,  and  rewarded  according  to  his  works. "j^ 

4.   The  Beginnings  of  Anarchism 

The  Utopian  systems  that  have  been  examined  in 
the  last  two  sections  were  on  the  whole  authoritarian 
rather  than  libertarian  in  their  political  outlook.  To 
use  words  of  later  vogue,  these  systems  were  socialistic 
rather  than  individualistic.  They  contemplated  the 
disappearance  of  the  coercive  fimctioning  of  govern- 
ment, but  they  retained,  especially  Saint-Simonism, 
the  thought  of  a  rational  or  spiritual  control  exercised 
by  preeminently  endowed  individuals  or  classes.  As 
distinct  from  this  kind  of  thinking  there  appeared  at 
the  same  time  a  development  of  the  strictest  individual- 
ism into  the  formal  theory  of  anarchy.  The  French- 
man Proudhon,  in  1840,  was  apparently  the  first  to 
assume  formally  the  name  of  anarchist.  The  sub- 
stance of  the  doctrine  that  justified  the  name,  however, 
had  been  pretty  fully  set  forth  half  a  century  before 
by  the  Englishman  William  Godwin,  in  his  Political 
Justice. 

Godwin  assumes  that  the  happiness  of  individuals 
is  the  end  of  all  social  institutions,  that  government 

1  (Euvres,  XLII,  348. 


GODWIN'S  POLITICAL  JUSTICE  363 

contributes  to  this  end  only  because  the  errors  and 
perversities  of  some  few  render  control  in  some  form 
inevitable,  that  these  errors  and  perversities  result  not 
from  will  but  from  weakness  and  ignorance,  and  that 
as  weakness  and  ignorance  diminish  government  will 
pass  to  its  euthanasia.^  "Each  man,"  Godwin  says, 
"should  be  wise  enough  to  govern  himself,  without  the 
intervention  of  any  compulsory  restraint;  and  since 
government,  even  in  its  best  estate,  is  an  evil,  ...  we 
should  have  as  little  of  it  as  the  general  peace  of  human 
society  will  permit."  ^ 

In  the  line  of  these  doctrines  Godwin  directs  a  vig- 
orous polemic  against  monarchic  and  aristocratic  gov- 
ernments in  particular,  and  in  general  against  those 
democracies  that  dominate  through  majority  rule  over 
the  individual.  Moreover,  such  ends  of  governmental 
policy  as  national  wealth,  national  prosperity  and 
national  glory,  he  holds  to  be  deceitful  formulas  through 
which  greedy  and  ambitious  men  lure  the  masses  into 
debasement  and  poverty.  War  for  such  spurious  pur- 
poses is  the  antipodes  of  justice.  It  involves  repression 
of  the  individual  to  the  maximum  degree.  All  that 
government  can  legitimately  do  is  to  suppress  injustice 
to  individuals  within  its  community,  and  defend  the 
community  against  invasion  from  without. 

In  the  existing  condition  of  ignorance  and  weakness 
among  men  Godwin  conceives  that  some  measure  of 
governmental  authority  is  necessary.  Its  limit  should 
be,  however,  (1)  local  associations  (e.g.,  in  parishes) 
for  dealing  with  offenders,  who,  he  maintains,  could 
1  Political  Justice,  Vol.  I,  p.  238.  *  Ibid.,  p.  246. 


364  POLITICAL  THEORIES 

never  defy  the  sober  judgment  of  the  mass  of  their 
neighbors;  and  (2)  for  the  settlement  of  difficulties 
between  parishes  and  for  general  defence  against 
invasion,  a  central  assembly  meeting  either  only  when 
an  emergency  arises  or  at  most  for  one  day  in  each 
year.  These  bodies,  both  local  and  central,  would  at 
first  act  by  command  and  force,  but  eventually  ex- 
postulation and  persuasion  would  effect  their  ends,  and 
thus  would  follow  "the  dissolution  of  political  govern- 
ment, of  that  brute  engine  which  has  been  the  only 
perennial  cause  of  the  vices  of  mankind."  ^ 

The  existing  system  of  private  property  is  in  Godwin's 
view  no  less  irrational  than  political  authority.  Under 
the  natural  principle  of  the  equality  of  men  one  man's 
claim  to  what  he  needs  or  wants  is  as  valid  as  any  other 
man's.  From  this  dogma  Godwin  deduces  the  con- 
clusion that  the  unequal  distribution  of  wealth  is 
unjust  and  must  pass  away.  Not  that  the  end  should 
be  attained  by  compulsory  action  of  either  government 
or  individuals.  Godwin  stands  firmly  on  his  ground 
that  compulsion,  whether  by  one  man  or  by  a  group, 
is  baneful.  Persuasion,  not  force,  must  remove  the 
evil  of  property  as  of  government. 

Godwin's  treatment  of  this  subject  ^  presents  an  in- 
teresting combination  of  the  old  speculations  of  Plato 
and  More  in  their  Utopias  with  the  theories  of  the  eigh- 
teenth-century exponents  of  natural  law  and  natural 
rights.  He  adds,  however,  considerations  that  were 
suggested  by  the  English  industrial  conditions  of  his 

^  For  this  whole  subject  see  Polit.  Just.,  Book  v,  chaps.  22-24. 
2  Book  viii,  in  Vol.  II,  p.  420. 


PROUDHON   ON   PROPERTY  365 

own  time  and  that  were  to  assume  great  importance  in 
the  socialistic  philosophy  of  succeeding  generations.^ 
The  influence  of  these  ideas  is  traceable  clearly  enough 
in  the  works  of  the  Saint-Simonians  and  others,  but  they 
received  particular  development  and  prominence  in 
the  speculations  of  the  first  avowed  anarchist,  Pierre 
Joseph  Proudhon. 

The  whole  substance  of  Proudhon 's  doctrine,  so  far 
as  it  concerns  our  subject,  is  to  be  found  in  his  early 
and  most  famous  work,  What  is  Property?  published 
in  1840.^  He  assumes  the  natural  equahty  of  men  in 
rights,  and  the  right  of  every  man  to  the  product  of 
his  own  labor,  and  to  nothing  else.  From  this  it  fol- 
lows that  the  wage-laborer  retains,  even  after  receiv- 
ing his  wages,  a  natural  property  right  in  the  product. 
It  is  a  violation  of  this  right  for  the  landowner 
and  the  capitalist  to  take  any  part  of  the  product. 
Hence  the  retention  of  such  part  under  the  name  of 
rent  and  interest  is  without  warrant,  and  it  is  to  wealth 
accumulated  by  such  a  process  that  he  applies  the 
well-known  dictum,  "Property  is  robbery." 

Proudhon  fully  concurs  in  the  distinction  made  by  the 
Saint-Simonians  between  workers  and  idlers,  but  he 

*  See  especially  the  second  chapter  of  his  Book  viii,  where  he 
distinguishes  three  degrees  of  property :  1.  the  means  of  subsist- 
ence; 2.  the  fruits  of  labor;  and  3.  the  produce  of  the  labor  of 
others. 

2  His  complete  works  have  been  published  in  twenty-six  volumes. 
The  What  is  Property  ?  has  been  translated  into  English  by  Benj. 
R.  Tucker.  Other  writings  of  Proudhon  that  contain  various 
aspects  and  elaborations  of  his  political  philosophy,  for  the  most 
part  less  clearly  and  simply  presented,  are :  La  Guerre  et  la  Paix, 
(Euvres,  t.  13,  14;  L'Ordre  dans  I'Humanite,  CEuvres,  t.  3 ;  La 
Justice,  (Euvres,  t.  21-26 ;  Solution  du  Probleme  social,  (Euvres,  t.  6. 


366  POLITICAL  THEORIES 

gives  a  strictly  economic  turn  to  the  discussion  by  identi- 
fying the  idlers  with  landowners  and  capitalists.  Thus 
the  problem  becomes  one  wholly  within  the  field  of 
industry  rather  than  one  of  which  industry  is  merely  an 
element.^  Proudhon  combats  further  the  Saint-Simon- 
ians  by  maintaining,  against  their  rule  that  each  must 
be  rewarded  according  to  his  capacity,  the  dogma  that 
in  society  equal  sharing  of  the  product  of  joint  effort 
is  the  only  just  rule.  Superiority  in  productive  power, 
like  superiority  in  talent  or  genius,  may  assure  a  degree 
of  satisfaction  and  distinction  to  its  possessor,  but  to 
society  as  a  whole  it  is  but  part  of  one  man's  contribu- 
tion to  the  total  needs  and  deserves  therefore  but  one 
man's  equal  pay.^ 

As  to  society  and  government  Proudhon  develops 
Godwin's  doctrine  with  a  refinement  of  analysis  and  a 
play  of  paradox  that  are  far  beyond  the  powers  of  the 
earlier  writer.  Man  is  social  by  nature,  as  Aristotle 
asserted.  Sociability  is  manifested  in  three  degrees, 
corresponding  to  successive  stages  in  the  development 
of  intelligence.  The  first  is  sympathy  or  pity,  "a,  sort 
of  magnetism  awakened  in  us  by  the  contemplation 
of  a  being  similar  to  ourselves  "  ;  the  second  is  justice, 
"the  recognition  of  the  equality  between  another's 
personality  and  our  own  " ;  the  third  is  social  propor- 
tionality {equite,  humanitas),  which  arises  from  the 
differences  in  strength,  skill  or  courage  among  men,  and 
is  exhibited  in  the  generosity  and  self-sacrifice  of  the 
superior  and  the  gratitude  and  honor  accorded  by  the 

»  Cf.  supra,  pp.  360-1. 

*  What  is  Property  ?  Tucker's  trans.,  pp.  129,  133-4. 


ORIGIN   OF   PROPERTY  367 

inferior.  All  these  degrees  and  aspects  of  the  social 
instinct  are  essential  in  rational  society,  but  justice  has 
in  fact  been  excluded  from  the  life  of  humanity  by  the 
institution  of  property,  and  property  has  been  chiefly 
responsible  for  the  existence  of  government.^ 

Rousseau's  account  of  the  origin  of  inequality  is 
suggested  very  strongly  by  the  history  of  property  and 
government  as  stated  by  Proudhon.  The  latter  is, 
however,  the  more  acute  in  his  metaphysics.  Primi- 
tive man,  he  holds,  lived  in  the  state  of  "negative  com- 
munism," the  sympathetic  aspect  of  the  social  instinct 
dominating  his  life.^  As  the  other  aspects,  justice  and 
equity,  developed,  the  superior  man,  freely  receiving 
the  respect  and  esteem  of  his  fellows,  took  also  by  his 
power  a  larger  share  of  material  comforts.  Thus 
property  arose  by  force  alone  and  was  manifested  in 
slavery,  feudal  services,  taxes,  rent,  etc.  Later  the 
principal  manifestation  was  in  various  forms  of  artifice, 
producing  "the  profits  of  manufactures,  commerce  and 
banking  .  .  .  andfinally  all  sorts  of  social  inequalities." 

Along  with  these  deplorable  effects  of  property  fol- 
lows the  worst  of  all,  government.  No  matter  what 
form  it  takes  —  monarchic,  oligarchic,  democratic,  it 
is  illegitimate  and  absurd;  and  Proudhon  asserts 
flatly  his  own  attitude  toward  all  of  them :  "Although 
a  firm  friend  of  order,  I  am  (in  the  full  force  of  the  term) 

^  For  the  whole  theory  of  Proudhon  on  this  topic,  see  What  is 
Property?  1st  memoir,  chap,  v  (Tucker's  trans.,  p.  219). 

*  In  connection  with  this  discussion  Proudhon  takes  occasion 
to  denounce  communism  as  severely  as  he  denounces  property. 
"Property  is  the  exploitation  of  the  weak  by  the  strong.  Com- 
munism is  the  exploitation  of  the  strong  by  the  weak."  Op.  cit.^ 
p.  250. 


368  POLITICAL  THEORIES 

an  anarchist."  ^  The  perversion  through  which  the 
strong  man  in  primitive  times  usurps  control  over  ma- 
terial things  enables  him  to  usurp  control  of  his  fellow- 
men.  It  is  natural  for  a  group  to  look  for  guidance  to 
its  oldest  or  its  wisest  man ;  but  when  it  begins  to  look 
to  its  strongest,  despotism  has  supervened.  His  will 
becomes  the  rule  for  all  and  this  remains  the  principle 
when  the  monarch  gives  way  to  the  narrow  group  of 
oligarchs  and  to  the  majority  rule  of  democracy. 

Proudhon  fortifies  his  a  priori  demonstration,  which 
is  not  always  cogent,  that  property  and  government  are 
illegitimate  in  origin,  with  a  rather  clever  manipula- 
tion of  history  to  show  that  they  have  moved  and  will 
continue  to  move  together  to  disappearance.  Author- 
ity of  the  human  will,  he  says,  has  already  decreased 
before  the  growth  of  habits  and  customs  that  have 
become  restraining  laws.  The  function  of  the  govern- 
ment is  now  executive  rather  than  legislative.  With 
the  growth  of  science  man  comes  to  understand  that 

political  truth,  or  the  science  of  politics,  exists  quite  indepen- 
dently of  the  will  of  sovereigns,  the  opinion  of  majorities 
and  popular  beliefs,  —  that  kings,  ministers,  magistrates 
and  nations,  as  wills,  have  no  connection  with  science; 
.  .  .  that  the  function  of  the  legislator  is  reduced,  in  the  last 
analysis,  to  the  methodical  search  for  truth. 

Thus,  just  as  property  is  giving  way  to  the  advance  of 

justice,  i.e.,  of  equality,  sovereignty  of  the  will  is  giving 

way  to  the  sovereignty  of  reason.     "As  man  seeks 

justice  in  equahty,  so  society  seeks  order  in  anarchy." 

Anarchy,  —  the  absence  of  a  master,  of  a  sovereign,  —  such 
is  the  form  of  government  to  which  we  are  every  day  approxi- 

1  What  is  Property?  trans.,  p.  260. 


SCIENCE,  NOT  WILL,   IS   LAW  369 

mating,  and  which  our  accustomed  habit  of  taking  man  for 
our  rule  and  his  will  for  law,  leads  us  to  regard  as  the  height 
of  disorder  and  the  expression  of  chaos. ^ 

In  this  proper  order  of  society  the  truths  of  exact 
science  rather  than  any  human  choice  or  volition  will 
guide  the  social  life. 

Every  question  of  domestic  politics  must  be  decided  by 
departmental  statistics;  every  question  of  foreign  poUtics 
is  a  question  of  international  statistics.  The  science  of 
government  rightly  belongs  to  one  of  the  sections  of  the  Acad- 
emy of  Sciences,  whose  permanent  secretary  is  necessarily 
prime  minister ;  and  since  every  citizen  may  address  a  memoir 
to  the  Academy,  every  citizen  is  a  legislator.  But  as  the 
opinion  of  no  one  is  of  any  value  until  its  truth  has  been 
proven,  nobody  can  substitute  his  will  for  reason  —  nobody 
is  king.2 

Law,  Proudhon  continues,  is  merely  a  conclusion  of 
reason.  Legality,  like  justice,  is  as  independent  of 
human  approval  as  mathematical  truth.  A  human 
legislator  does  not  make  law :  he  merely  states  it. 
"He  is  the  proclaimer,  not  the  inventor."^  Any  one 
may  announce  a  truth  of  political  or  social  existence ; 
it  is  law  only  when  it  is  recognized  by  the  nation; 
"...  the  nation  is  the  executive  power."  Hence  the 
claim  by  any  individual  that  his  will  is  law  in  any  sense 
is  destructive  of  social  life.  Humanity  can  be  saved 
only  by  ruthless  suppression  of  such  claims  and  there- 
fore by  the  overthrow  of  the  property-owner  (pro- 
prietaire),  the  bandit  and  the  monarch,  who  are  all 
in  the  same  class. 

»  Op.  ciL,  pp.  263-4.  2  Op.  cit.,  p.  265. 

3  Godwin  preached  this  doctrine. 

2b 


370  POLITICAL  THEORIES 

The  only  just  and  true  form  of  society,  Proudhon 
concludes,  is  "free  association,  liberty  —  whose  sole 
function  is  to  maintain  equality  in  the  means  of  pro- 
duction and  equivalence  in  the  exchanges."  "Politics 
is  the  science  of  Kberty.  The  government  of  man  by 
man  ...  is  oppression.  Society  finds  its  highest 
perfection  in  the  union  of  order  mth  anarchy." 

The  character  of  Proudhon 's  constructive  proposals 
would  warrant  his  classification  with  the  Utopian  social- 
ists as  justly  as  with  the  anarchists.  His  forecast  of 
the  social  and  political  future  is  as  vague  and  inco- 
herent as  that  of  the  Saint-Simonians  and  quite  as 
fantastic  as  that  of  Fourier.  On  the  other  hand  there  is 
an  aggressive  and  revolutionary  quality  in  Proudhon 's 
attack  on  the  principle  of  government  in  general  that 
is  lacking  in  the  earlier  writers.  His  adoption,  more- 
over, of  the  term  anarchy  as  expressing  the  nature  of 
his  goal  has  a  serious  significance  in  distinguishing  him 
from  his  immediate  predecessors.  Finally  the  part  he 
took  in  the  agitation  that  culminated  in  the  great  dis- 
turbances of  1848  and  the  succeeding  years  stamps 
him  as  belonging  to  a  school  of  his  own.  He  remained 
to  the  end  of  his  life  in  1865,  amid  a  variety  of  ex- 
periences of  prosecution  and  exile,  a  vigorous  and  in- 
dependent exponent  of  a  peculiar  social  and  economic 
philosophy,  maintained  with  a  prolific  output  of  the 
distorted  erudition  and  paradoxical  dialectic  that  were 
at  once  the  strength  and  weakness  of  his  style.  His 
followers,  however,  were  few.  His  force  was  primarily 
critical  and  destructive,  and  the  trend  of  the  time, 
among  the  assailants  of  the  existing  social  order,  was 


THE    RIGHT   TO   LABOR  371 

distinctly  toward  that  species  of  doctrine  that  began 
to  look  to  the  leadership  of  the  rising  German  socialism 
and  its  ablest  representative,  Karl  Marx. 

5.  Marxist  Doctrine 

One  of  the  most  spectacular  episodes  of  the  revolu- 
tionary upheaval  of  1848  was  the  experiment  at  Paris 
with  national  workshops.  This  was  a  practical  applica- 
tion, in  a  crude  and  imperfect  manner,  of  the  socialistic 
dogma  with  which  Louis  Blanc  had  been  conspicuously 
identified,  that  of  the  right  to  labor.  We  have  seen 
that  such  a  right  had  been  among  the  natural  endow- 
ments ascribed  to  all  men  by  the  French  constitution  of 
1793.^  When  unemployment  and  poverty  assumed 
distressing  proportions  in  France  through  the  rise  of 
factories,  this  right  was  made  the  foundation  of  the 
demand  that  the  government  should  guarantee  to  the 
citizens  the  opportunity  to  earn  a  livelihood.  Blanc's 
plan  was  to  insure  to  workingmen  the  equipment  for 
cooperative  production,  so  as  to  be  independent  of  the 
capitalists.  What  was  actually  done  by  the  revolu- 
tionary government  in  1848  was  to  offer  employment  to 
practically  all  comers  under  the  direction  of  the  govern- 
ment itself.  The  undertaking  ended  in  disaster  and 
insurrection,  but  it  stood  as  a  sign  of  the  transition  of 
the  socialistic  movement  from  mild  humanitarianism 
to  political  revolutionism. 

The  platform  of  principle  on  which  the  new  socialism 
was  destined  to  stand  took  form  in  the  celebrated 

» Supra,  p.  122. 


372  POLITICAL  THEORIES 

Communist  Manifesto,'^  prepared  by  Karl  Marx  and 
Friedrich  Engels  in  January,  1848.  In  this  is  embodied 
the  whole  substance  of  the  doctrine,  so  far  as  concerns 
political  theory,  that  dominated  the  socialistic  move- 
ment till  at  least  the  death  of  Marx  in  1883. 

The  basic  idea  is  that  the  general  social  order  at  any 
given  time  is  fixed  by  the  existing  system  of  production 
and  exchange  of  the  commodities  required  for  the  satis- 
faction of  human  needs.  These  economic  facts  de- 
termine the  forms  of  political  life.  History  shows 
governmental  institutions  changing  with  the  changes 
in  industry  and  commerce.  But  these  industrial  and 
commercial  changes  are  reflected  primarily  in  the 
transformed  relationships  of  social  classes.  Here  is 
found  the  clue  to  all  history ;  for,  in  the  words  of  the 
Manifesto,  "the  history  of  all  hitherto  existing  society 
is  the  history  of  class  stmggles." 

But  the  battling  classes  shown  to  Marx  are  not  those 
so  much  discussed  by  the  Saint-Simonians.  Not  the 
workers  and  the  idlers,  but  the  bourgeoisie  and  the 
proletariat,  are  the  elements  whose  strife  is  the  sub- 
stance of  contemporary  social  life.  The  odium  that 
is  loaded  upon  the  idlers  by  the  utopian-socialist  litera- 
ture is  by  the  Manifesto  assigned  with  increased  measure 
to  the  bourgeoisie.  This  class,  having,  as  the  Third 
Estate,  wrested  social  prestige  and  political  power  from 
the   feudal   privileged   classes,    is   now,    as   tyrannic 

^  The  Manifesto,  printed  originally  in  German  and  secretly 
circulated,  is  now  available  in  many  forms  and  in  most  modern 
languages.  I  have  used  the  edition  published  by  Charles  H.  Kerr 
&  Co.,  of  Chicago,  probably  in  1911,  and  described  on  the  title  page 
as  the  "Authorized  EngUsh  Translation." 


BOURGEOISIE  AND  PROLETARIAT  373 

capital,  to  be  overthrown  by  the  oppressed  and  ex- 
ploited proletariat.  Modern  economic  conditions  ren- 
der it  inevitable  that  all  lesser  social  groups  shall  be 
absorbed  in  one  or  the  other  of  these  two  classes. 
Pohtical,  rehgious  and  scientific  interests  will  become 
the  servile  tools  of  the  capitalists,  resisting  individuals 
being  crushed  down  into  the  ranks  of  the  proletariat. 
Warring  nationalities  will  forget  their  antagonisms  and 
will  all  alike,  by  the  pressure  of  world-wide  commercial 
and  industrial  conditions,  be  divided  into  the  parties 
of  capital  and  labor. 

The  reciprocal  antagonism  of  these  two  parties  is 
unceasingly  intensified  by  the  operation  of  the  same 
influences  that  created  them.  Under  the  law  of  its 
being  the  bourgeoisie  moves  remorselessly  on  from 
exploitation  to  exploitation,  forcing  ever  new  masses 
of  its  victims  down  into  the  ranks  of  the  proletariat.  Its 
own  relative  numbers  correspondingly  diminish  and 
world  society  assumes  ever  more  clearly  the  aspect  of 
a  small  group  of  immensely  wealthy  capitalists  dom- 
inating despotically,  through  their  control  of  the  means 
of  production,  the  whole  of  the  human  raceTj 

To  Marx  the  end  of  this  process  is  no  less  plain  than 
its  development.  The  masses  of  the  proletariat,  edu- 
cated by  their  experience  and  conscious  of  their  strength, 
will  overwhelm  their  oppressors  as  the  bourgeoisie 
overwhelmed  the  feudal  classes.  The  political  revo- 
lution will  be  succeeded  and  paralleled  by  the  social 
revolution.  All  the  instrumentalities  of  production, 
now  monopolized  by  the  few  under  the  name  of  capital, 
will  be  taken  over  by  the  masses  for  the  general  good. 


374  POLITICAL  THEORIES 

The  political  control  that  goes  with  this  economic 
power  will  be  assumed  by  the  commmiity,  to  whom  it 
belongs.  Such  result  is  a  necessary  consequence  of  the 
forces  at  work  in  the  progress  of  modern  civilization. 
It  is  foreordained  in  accordance  with  the  materialistic 
interpretation  of  history  that  is  set  forth  with  such  power 
and  plausibility  in  the  Manifesto.  It  rests  upon  the 
relations  between  the  physical  constitution  of  the  earth 
and  the  mental  and  physical  attributes  of  man. 

In  strict  logic  the  demonstration  that  the  social 
revolution  is  inevitable  would  render  unnecessary  any 
deliberate  action  by  men  to  bring  it  about.  But 
Marx  was  as  indisposed  as  any  earlier  or  later  deter- 
minist  to  let  nature  take  its  course  unaided.  From 
his  youth  he  was  active  in  the  promotion  of  practical 
revolution.  The  Manifesto  was  designed  as  a  program 
of  action  for  the  CommunistS;  and  it  embodied  there- 
fore the  announcement  of  concrete  projects.  These,  if 
not  always  in  entire  harmony  with  the  philosophy  of 
the  movement,  constitute  an  important  revelation  of 
its  practical  spirit. 

The  immediate  aim  of  the  Communists  is  declared 

rto  be  the  formation  of  the  proletariat  into  a  self-con- 
scious class,  which  shall  overthrow  the  bourgeosie  and 
appropriate  to  itself  the  political  power  of  the  van- 
quished. Then  will  follow,  as  steps  in  the  regeneration 
of  society,  the  wresting  of  all  capital  from  the  bour- 
geoisie ;  the  centralizing  of  aU  instruments  of  produc- 
tion in  the  hands  of  the  state,  "i.e.,  of  the  proletariat 
organized  as  the  ruling  class";  and  the  most  rapid 
possible  increase  of  productive  forces.     Credit  will  be 


PROLETARIAT   TO    RULE  375 

centralized  in  the  hands  of  the  state,  manufacturing  and 
agriculture  will  be  developed  under  the  same  auspices, 
the  liabihty  to  labor  will  be  imposed  upon  all,  and  educa- 
tion in  public  schools  will  be  free  for  all. 

None  of  these  proposals  was  new  in  the  history  of 
socialism.     The  novel  note  was^in  the  uncompromising        / 

demand  that  ^ey  "sHouldbe  realized  by  a  r-evolution 

thaFsEouId  insure  the  supremacy  of  the  wage-earning^ — "x 
masses.     The   authors   of   the   Manifesto   were   quite      \ 
aware  that  they  were  proposing,  not  the  abolition  of       \ 
class  rule,  but  the  transfer  of  absolute  power  from  one       \ 
class  to  another.    And  they  defined  political  power  as        \ 
''merely  the  organized  power  of  one  class  for  oppressing 
another."       But  the  proletariat,  they  explained,  was 
organized  as  a  class  merely  as  an  incident  of  the  stiiiggle 
with  the  enemy  and  for  the  purpose  of  effecting  th 
revolution.    When  the  new  authority  shall  have  swept 
away  by  force  the  old  conditions  of  production,  there 
will  no  longer  exist  any  basis  for  classes  and  class  an- 
tagonisms ;  the  proletariat  will  have  abolished  its  own  C^ 
supremacy  as  a  class,  and  society  will  be,  not  a  group 
of  waning  classes,  but.. "an  association  in  which  the 
free  development  of  each  [individual  ?]  is  the  condition 
for~The  free  development  of  all." 

This  somewhat  jaunty  evasion  of  a  serious  dilemma 
is  out  of  tone  with  Marxist  doctrine  in  general  and  sug- 
gests the  vagueness  of  the  Utopians  in  respect  to  what  is 
to  follow  the  realization  of  the  reforms  that  are  aimed 
at.  The  idea  that  a  millennial  calm  is  to  prevail  after 
the  triumph  of  the  proletariat  is  in  shrieking  contradic- 
tion  of  all  the  implications  of  the  Manifesto  and  other 


J 


376  POLITICAL  THEORIES 

Marxist  productions.  Conflict  and  struggle  appear  as 
normal  and  necessary  concomitants  of  the  social  evolu- 
tion, and  Marx  found  great  satisfaction  in  likening  this 
to  the  biological  evolution  that  Darwin  was  just  bring- 

g  into  consciousness.^  But  Darwin  never  suggested 
that  the  process  would  cease  just  as  soon  as  man  be- 
came finally  rid  of  the  characteristics  of  the  Pithecan- 
thropus. 

Marx's  own  energies  were  employed  throughout  his 
life  in  developing  and  buttressing  with  abstruse  eco- 
nomic theory  the  doctrine  of  bourgeois  tyranny  and 
the  class  struggle,  and  promoting  all  possible  revolu- 
tionary enterprises  for  the  overthrow  of  existing  social 
institutions.  His  ideas  and  his  influence  were  at  the 
maximum  of  their  importance  in  the  sixties  and  the 
seventies.  In  these  decades  the  International  Work- 
ingmen's  Association,  of  which  he  was  the  leading  spirit, 
expressed  in  a  peculiarly  satisfactory  way  the  policy 
that  he  approved  for  the  promotion  of  the  proletarian 
revolution.  With  the  dissolution  of  the  International, 
however,  the  leadership  in  practical  movements  for 
socialistic  ends  passed  to  those  who  adopted,  without 
Marx's  approval,  the  method  of  action  through  national 
political  parties.  Various  modifications  of  Marxist  prin- 
ciples gained  acceptance  in  these  parties,  but  the  general 
doctrine  of  the  Communist  Manifesto  remained  dominant 
in  the  socialistic  movement  to  the  end  of  our  period. 

1  Marx  is  reported  to  have  said  once :  *'  Nothing  ever  gives  m^e 
greater  pleasure  than  to  have  my  name  thus  linked  onto  Darwin's. 
His  wonderful  work  makes  my  own  absolutely  impregnable.  Darwin 
may  not  know  it,  but  he  belongs  to  the  social  revolution."  —  Spargo, 
Karl  Marx,  p.  200.     Cf.  also  pp.  323  et  seq. 


SOCIETARIAN   POLITICAL  THEORY  377 

6.   Lorenz  von  Stein 

A  broad  and  in  many  respects  most  profomid  socie- 
tarian  philosophy  of  the  middle  nineteenth  century 
was  that  of  Lorenz  von  Stein.  This  made  a  deep 
impression  in  its  time,  but  for  various  reasons  passed 
soon  into  neglect  and  almost  oblivion.^  It  is  noteworthy 
in  our  survey,  however,  for  its  scientific  synthesis  of 
the  earlier  German  dogmatic  idealism  with  the  his- 
torical materialism  that  was  preached  by  Marx,  It 
exhibited  admirably  the  common  ground  in  which 
socialism  and  sociology  had  their  roots. 

Stein's  first  work,  pubhshed  in  1844,  was  a  history 
and  analysis  of  French  (utopian)  socialism,  leading  to 
a  prediction  of  impending  social  revolution.  The 
general  European  convulsion  of  1848  naturally  led 
him  to  further  reflection  on  the  general  subject  and 
to  the  production  of  a  larger  work,  which  he  prefaced 
with  an  introduction  entitled  "The  Concept  of 
Society."^  This  introduction  presents  the  theory 
that  is  the  subject  of  our  consideration. 

Stein's  fundamental  dogmas  are  suggestive  at  once 
of  Haller  and  of  Marx.  Human  association  (Gemein- 
schajt),  he  holds,  depends  inevitably  in  structure  and 
in  function  on  the  relation  of  the  two  classes  —  the 
haves   and  the  have-nots.     The  potential   or  actual 

1  One  important  reason  for  this  was  the  transfer  of  Stein's  chief 
interest  from  social  science  to  law  and  administration.  For  some 
particulars  of  his  personality  and  career  see  Simkhovitch,  Marxism 
versus  Socialism,  174  et  seq. ;  Bluntschli,  Geschichte,  731;  Spargo, 
Karl  Marx,  67. 

2  The  title  of  the  work  in  full  is  this  :  Der  Begriff  der  Gesellschaft 
und  die  sociale  Geschichte  der  franzosischen  Revolution  bis  zum 
Jdhre  1830.    The  date  is  1849.    I  have  used  the  second  edition,  1855. 


378  POLITICAL  THEORIES 

subjection  of  the  one  to  the  other  is  determined  by  the 
continuous  seeking  for  "goods,"  that  is,  for  the  satis- 
faction of  desire,  whether  material  or  spiritual.  This 
striving  after  "goods"  is  the  substance  of  life  in  gen- 
eral, both  individual  and  social ;  and  all  life  is  mani- 
fested in  the  action  and  reaction  of  two  elements,  the 
personal  and  the  non-personal  —  conscious  intelligence 
and  blind  force,  man  and  nature.^  In  the  social  life 
of  man  these  conflicting  elements  serve  to  distinguish 
what  we  call  state  from  what  we  call  society.  The 
substance  of  the  life  of  the  human  race  is  a  ceaseless 
struggle  between  these  two. 

In  the  state  is  expressed  the  principle  of  free,  self- 
determining  personality.  Its  organization  and  action 
are  directed  to  the  development  of  every  individual  to 
the  fullest  liberty,  to  the  fullest  personal  perfection. 
Society,  on  the  other  hand,  expresses  the  principle  of 
bHnd,  unintelligent,  instinctive  self-interest  —  the  pur- 
pose to  make  all  external  things,  including  persons, 
contributory  to  special  needs  and  satisfactions.  While 
the  state  operates  to  make  every  one  free  to  achieve 
the  satisfaction  of  his  desires  by  his  own  intelligent 
efforts,  society  tends  always  to  promote  the  ends  of 
some  individuals  through  the  subjection  of  others. 

Having  thus  connected  his  primaiy  dogmas  with  the 
conceptions  of  state  and  society.  Stein  interprets  famil- 
iar history  in  accordance  with  his  theoiy.  He  finds 
the  salient  feature  in  the  career  of  every  community 

^  Stein  explains  his  meaning  by  saying  that  the  complete  absorp- 
tion of  the  non-personal  by  the  personal  is  God,  while  at  the  other 
limit  the  absorption  of  the  personal  in  the  non-personal  is  death. 
Human  life  ranges  between  these  limits.     Op.  cit.,  p.  xxx. 


STATE   AND   SOCIETY   IN   CONFLICT  379 

to  be  the  conflict  of  classes  —  the  effort  of  special  in- 
terests to  promote  their  respective  good  at  the  expense 
of  their  rivals.  In  pursuance  of  this  object  the  imme- 
diate aim  of  each  class  is  to  control  for  its  particular 
ends  the  power  of  the  state.  This  means,  in  Stein's 
theory,  that  the  struggle  is  fundamentally  one  between 
social  forces  and  political  forces  —  between  society  and 
the  state.  Where  history  records  the  prestige  and 
power  of  gilds,  monopolies  and  privileged  classes,  the 
record  is  that  of  the  triumph  of  the  social  over  the  politi- 
cal principle.  Where  the  system  of  caste  prevails, 
this  triumph  is  complete :  the  state  is  dissipated  and 
destroyed  in  the  class  distinctions  and  the  community 
exhibits  what  Stein  calls  "absolute  society."  ^ 

A  strong  trend  of  humanity  toward  such  supremacy 
of  the  social  principle  is  found  by  Stein  to  be  manifested 
in  the  career  of  every  community.  The  domination  of 
class,  with  the  resulting  condition  of  imfreedom  (Un- 
freiheit),  shows  the  universal  power  of  natural  forces. 
Only  by  a  mighty  exertion  of  conscious  intelligence  is 
the  balance  ever  restored  in  favor  of  the  state  and  of 
the  personality  and  freedom  which  it  expresses.  But  a 
perfect  realization  of  freedom  through  the  state  is 
impossible,  since  men  must  live  in  society,  and  society 
implies  some  measure  of  unfreedom.^  All  that  can  be 
looked  for  is  the  overthrow  of  any  class  that  at  a  given 
time  has  the  power  of  the  state  in  its  hands.  To  that 
extent  freedom  will  be  obtained. 

*  Op.  cit.,  p.  lix. 

*  Stein  explains  that  this  was  the  thought  of  Rousseau  when 
he  said  that  a  perfect  republic  was  possible  only  for  the  gods.  Op. 
cit.,  p.  Ixvi.     Cf.  supra,  p.  31. 


380  POLITICAL  THEORIES 

It  is  obvious  that  Stein  contemplates  as  the  normal 
mode  of  community  life  the  same  class  struggle  which 
appears  in  the  Communist  Manifesto.  His  exposition 
of  the  process  through  which  the  transition  from  un- 
freedom  is  effected  shows  a  less  uncompromising  spirit 
than  that  of  Marx.^  Stein  recognizes  reform  as  well 
as  revolution  to  be  a  logical  and  customary  way  to  the 
end.  The  movement  must  begin,  he  holds,  in  society 
rather  than  in  the  state.  The  transformation  of  the 
social  order  always  precedes  and  determines  the  shap- 
ing of  the  political  order.  This  doctrine  is  the  basis  of 
Stein's  contention  that  reform  rather  than  revolution 
is  the  normal  method  of  developing  the  regime  of 
liberty.  Here  begins  his  divergence  from  the  dogma 
of  Marx. 

For  breaking  the  dominion  of  one  social  class  over  the 
rest  the  absolute  prerequisite.  Stein  declares,  is  the 
acquisition  by  the  subject  classes  of  social  "goods." 
Marxian  doctrine  concurs  with  this,  but  largely  ig- 
nores all  but  material  goods,  that  is,  wealth.  Stein, 
on  the  contrary,  stresses  the  primary  importance  of 
spiritual  goods.  The  independent  personality  that 
constitutes  liberty  rests  more  upon  the  spiritual  than 
upon  the  material.  An  individual  is  free  only  when  he 
possesses  spiritual  goods,  and  such  possession  connotes 
knowledge  and  capacity,  or  in  short  culture  {Bildung)} 

'  As  to  the  possible  influence  of  Stein's  first  work  on  Marx, 
see  Spargo  and  Simkhovitch,  loc.  cit. 

^  The  difficulty  of  rendering  Bildung  by  any  single  English  word 
is  well  known.  "Education"  is  in  some  eases  satisfactory,  but  is 
likely  to  suggest  a  process  rather  than  a  result.  "Culture"  as  a 
translation  has  obvious  weaknesses,  but  seems  fairly  usefxil  here. 


CONFLICT   OF   THE   CLASSES  381 

A  subject  class  takes  the  first  step  toward  independence, 
therefore,  only  when  it  begins  a  cultural  advance. 
From  that  time  the  struggle  with  the  ruling  class  is 
continuous. 

While  the  initial  impulse  comes  thus  from  the 
spiritual  side,  material  goods  soon  assume  equal  im- 
portance in  the  movement  and  the  conflict.  The  de- 
mand for  culture  and  the  demand  for  wealth  go  hand 
in  hand  and  give  each  other  reciprocal  support.  Stein 
acutely  indicates,  however,  an  important  distinction 
in  this  matter.  Culture  —  spiritual  goods  —  may  al- 
ways be  acquired  to  an  indefinite  extent  by  those  who 
lack  it,  without  diminishing  in  any  degree  the  posses- 
sions of  those  who  have  it ;  as  to  material  goods  this 
is  far  from  universally  true.  In  this  distinction  lies  a 
reason  for  the  greater  bitterness  of  the  class  conflict 
when  the  issue  has  reached  its  full  development  on  the 
economic  side. 

There  are  indeed  three  stages  distinguishable  in  the 
process  through  which  the  subject  class  rises  to  power. 
First  it  acquires  social  goods  —  culture  and  property 
—  and  the  justice  of  such  acquisition  becomes  generally 
recognized.  Second,  by  political  reform  or  revolution 
the  government  is  so  transformed  as  to  express  this 
new  sense  of  right  in  the  constitution  and  law  of  the 
community.  These  two  stages  have  been  achieved  in 
Western  Europe.  Before  it  lies  the  further  and  by  far 
the  most  serious  stage  of  the  advance.^ 

The  difficulty  in  this  situation  is  explained  by  Stein 
through  the  application  of  his  basic  philosophy  to  the 

'  Stein,  op.  cit.,  pp.  xcviii  et  seq. 


382  POLITICAL   THEORIES 

relation  of  capital  to  labor.  It  was  relatively  easy, 
he  asserts,  for  the  subject  class  under  the  old  regime  to 
acquire  a  share  in  social  goods,  especially  property, 
since  the  superiority  of  the  ruling  class  rested  merely 
on  passive  possession.  But  the  ruling  class  of  the  later 
day,  the  industrial  capitalists,  hold  their  position  by 
laborious  acquisition.  They  labor  as  truly  as  do  the 
wage-earners  and  they  maintain  their  social  power  by 
so  using  their  capital  as  to  increase  it  constantly  and  as 
constantly  to  exclude  the  wage-earners  from  any  share 
in  it.  In  industrial  society  the  class  that  is  without 
industrial  capital  is  almost  wholly  at  the  mercy  of  the 
other :  there  is  the  utmost  disparity.  Stein  holds,  be- 
tween the  combatants  when  laboring  possession  is 
opposed  to  possessionless  labor.^ 

The  only  way  out  is  here,  as  in  the  earlier  stage  of  the 
eternal  struggle  for  Hberty,  through  the  acquisition 
first  of  spiritual  goods  by  the  subject  class  —  through 
the  attainment  of  knowledge  and  capacity  by  education. 
However  impassable  the  barrier  maintained  by  the 
dominant  economic  class  against  the  acquisition  of 
material  goods  by  the  wage-earners,  the  aspiration  to 
culture  can  never  be  suppressed.  There  is  no  power  in 
the  world  able  to  prevent  the  spread  of  knowledge  and 
capacity.  This  is  as  true  in  a  society  based  on  industry 
as  in  any  other.  In  this  truth,  Stein  holds,  is  the  key 
to  the  existing  agitation  in  Europe.  The  civilized  world 
confronts,  not  political  cataclysm,  but  social  reform  or 
revolution.  Such  is  the  end  portended  by  the  rise  of 
communism,  socialism  and  the  idea  of  social  democracy.^ 
*  Stein,  oj).  cit.,  p.  oiv.  *  Ibid.,  p.  ovi. 


LIBERTY  AND   EQUALITY   SOUGHT  383 

Under  these  three  heads  Stein  classes  the  various 
theories  and  practical  projects  of  social  reorganization 
that  were  current.  The  terms  "communism"  and 
"socialism"  he  uses  in  a  way  that  exactly  transposes 
the  meanings  attached  to  them  in  the  Communist 
Manifesto,  but  corresponds  to  the  usage  that  later 
became  universal.  By  communism  he  means  the  sort  of 
doctrine  set  forth  by  the  Saint-Simonians  and  Fourier ; 
by  socialism  he  indicates  the  ideas  of  Marx  and  his 
followers.^ 

The  basis  of  all  these  subversive  movements  is, 
according  to  Stein,  the  instinctive  craving  for  liberty 
and  equality.  Liberty  means  self-dependence  and  a 
free  field  for  the  development  of  the  individual  person- 
ahty;  it  is  the  characteristic  aspiration  of  the  self- 
conscious  man.  Equality  is  an  idea  that  is  deduced 
from  that  of  liberty,  but  takes  in  practical  matters  a 
crude  and  illogical,  though  highly  influential,  form, 
namely,  the  demand  for  an  equal  participation  by  all 
individuals  in  material  goods.  Communism,  as  show- 
ing favor  to  this  idea,  is  severely  condemned  by  Stein. 
In  denying  property  to  the  individual  and  vesting  it  all 
in  the  community,  it  does  not  exalt  the  laboring  class, 
but  merely  gives  to  the  community  or  the  state  the 
position  of  superiority  formerly  possessed  by  individuals. 

Socialism,  on  the  other  hand,  gives  labor  as  a  class 
the  control  of  the  other  class,  that  is,  of  capital.  Social- 
ism, Stein  says,  is  based  upon  labor  and  thus  upon  the 

^  Ibid.,  pp.  ovii  et  seq.  Cf.  Communist  Manifesto,  pp.  47  et 
seq.  Also  Spargo,  Karl  Marx,  p.  89  (concerning  Weitling,  whom 
Stein  refers  to  as  a  particularly  obnoxious  communist)  and  p.  97. 


384  POLITICAL  THEORIES 

idea  of  individual  personality,  which  is  peculiarly- 
expressed  in  free  labor.  It  does  not,  like  communism, 
seek  to  obliterate  all  distinctions  between  individuals 
and  so  destroy  all  social  organization.  Its  goal  is  a 
society  based  upon  the  division  and  organization  of 
labor  for  production,  without  reference  to  questions 
of  possession.  To  reahze  its  ends  Stein  believes  that 
the  laboring  class  must  get  into  its  hands  the  power  that 
is  necessary  to  overcome  the  opposing  class,  and  that 
power  is  the  state.-^ 

Logically  the  socialistic  idea  is  closely  connected  with 
the  idea  of  political  democracy.  Both  rest  upon  the 
concept  of  personality  independent  of  material  goods. 
Because  of  this.  Stein  shows,  there  arises  in  the  general 
social  movement  a  natural  union  of  the  two  elements. 
Political  democracy  works  in  the  field  of  the  constitu- 
tion and  the  law;  socialism  works  in  the  field  of 
governmental  administration  and  policy.  This  com- 
bination constitutes  the  idea  of  social  democracy,  as 
distinguished  from  socialism.  The  aim  of  the  social 
democracy  is  to  establish  universal  suffrage  by  the 
constitution,  and  to  insure  a  governmental  policy 
directed  to  the  social  emancipation  of  the  laboring  class. 

The  general  principle  that  all  the  forms  of  current 
social  agitation  seek  to  establish  is  personal  liberty  — 
the  control  of  the  individual  over  external  things  for 
his  own  interest.  This  Stein  recognizes  to  be  a  legiti- 
mate and  an  inevitable  aspiration  of  men  having  any 
attainment  of  intelligence.  The  concrete  object  of 
contemporary  demand  is  the  control  of  capital  —  the 

^  Stein,  op.  cit.,  pp.  cxii  et  seq. 


CAPITAL  MEANS   LIBERTY  385 

instruments  of  production  —  by  those  who  have  it  not. 
The  two  methods  variously  advocated  for  achieving 
the  end  are  social  revolution  and  social  reform.  The 
way  of  revolution  Stein  holds  to  be  delusive  and  futile. 
There  would  be  no  more  liberty  where  labor  lorded  it 
over  capital  than  there  is  where  capital  lords  it  over 
labor.  Moreover,  the  dictatorship  of  the  proletariat 
would  rest  on  no  such  superiority  of  either  physical  or 
moral  and  intellectual  force  as  to  insure  its  continuance. 

Reform  rather  than  revolution  is  the  method  by  which 
Stein  would  deal  with  the  great  crisis  that  he  sees 
impending.  He  would  avoid  all  such  Utopian  aims  as 
the  realization  of  general  equality  or  the  abolition  of 
poverty.  All  that  will  avail  is  the  gradual  and  system- 
atic establishment,  by  legislation  and  administration, 
of  conditions  that  shall  open  to  every  possessor  of  the 
power  to  labor  the  opportunity  to  become  the  possessor 
of  capital.^  For  in  industrial  society  capital  is  the 
expression  and  realization  of  that  control  over  external 
things  that  is  the  essence  of  liberty.  Where  liberty  in 
this  sense  does  not  exist  the  social  order  stands  in  op- 
position to  the  idea  of  free  personality  and  therefore 
cannot  endure.^ 

Stein's  philosophy  is  interesting  as  the  doctrine  of 
a  conservative  who  is  convinced  that  the  radical  social 
movement  of  his  time  is  founded  in  justice  and  must 
be   sympathetically   handled   by   the   ruling   powers. 

'  "  Die  Bestimmung  der  personlichen  Freiheit  in  dieser  [Erwerbs-] 
GeseUschaft  liegt  mithin  darin,  dass  die  letzte  Arbeitskraft 
die  Fahigkeit  habe,  zum  Kapitalbesitze  zu  gelangen."  —  Ibid.,  p. 
oxxviii. 

*  Ibid.,  pp.  cxxviii  et  seq. 

2c 


386  POLITICAL  THEORIES 

Politically  he  is  opposed  to  the  revolutionary  party. 
He  believes  that  of  all  the  forms  of  the  state  monarchy 
has  shown  itself  in  European  history  the  purest  em- 
bodiment of  the  principle  of  liberty.  It  has  systemati- 
cally sustained  the  interests  of  the  oppressed  classes 
against  their  oppressors  and  has  thus  played  the  proper 
part  in  the  perennial  conflict  of  state  and  society.^ 
But  whatever  the  tj^^^e  of  organization,  the  constitu- 
tion and  the  administration  must  conform  to  the 
economic  and  social  principles  that  he  has  expounded. 
Stein  is  no  less  certain  than  the  authors  of  the  Com- 
munist Manifesto  that  the  gentle  humanitarianism 
and  private  experimenting  of  Saint-Simonism,  Four- 
ierism  and  the  rest  are  obsolete,  and  that  the  industrial 
class  war  and  the  social  revolution  must  be  the  central 
issues  of  serious  political  theory  and  serious  political 
practice. 

Stein's  philosophy  is  important  in  another  respect. 
It  shows  clearly  the  sociological  trend  of  political  theory. 
His  distinction  between  society  and  the  state  and  his 
elaboration  of  the  social  as  distinct  from  the  political 
form  and  function  were  highly  significant.  Sociology 
was  in  process  of  differentiation  from  political  theory 
when  Stein  wrote.  It  already  had  a  name  as  a  dis- 
tinct science.  Within  another  generation  it  would  be- 
come a  definitely  integrated  body  of  knowledge  and 
would  be  imposing  upon  political  philosophy  new  and 
important  types  of  dogma. 

•  Stein,  op.  ciU,  p.  xxxvii.     See  supra,  p.  379. 


SOCIETARIAN  POLITICAL  THEORY  387 

7.  Auguste  Comte 

The  speculation  of  Stein  shows  numerous  indications 
of  Saint-Simonian  influence,  with  HegeHan  modifica- 
tions. Probably  the  Saint-Simonian  tinge  was  re- 
ceived indirectly  through  Auguste  Comte;  for  when 
Stein  began  to  write,  Comte's  Philosophie  Positive 
had  just  been  completed,^  giving  him  a  commanding 
position  in  the  world  of  thought,  and  Comte  built  his 
system  on  Saint-Simonism.  Moreover,  when  the  struc- 
ture had  been  completed  in  the  distinctive  manner  of 
his  own  superior  genius,  he  decorated  it  with  an  ex- 
aggeration of  the  Saint-Simonian  religious  futility. 

Sociology  was  the  name  invented  by  Comte  to  desig- 
nate the  science  that  is  concerned  with  the  phenomena 
of  the  organic  as  distinguished  from  the  inorganic  world. 
More  narrowly  sociology  means  the  science  of  human- 
ity, excluding  thus  the  other  forms  of  organic  life. 
In  the  first  sense  it  includes  biology;  in  the  second 
sense  it  follows  biology  in  the  hierarchy  of  the  sciences.^ 
The  working  out  of  his  famous  grouping  of  the  sciences 
was  an  incident  of  Comte's  extensive  speculation  in  the 
methodology  of  intellectual  progress.  The  wonder- 
ful system  embodied  in  his  comprehensive  Positive 
Philosophy  was  built  up  as  indispensable  to  a  sound 
theory  of  social  life,  and  the  search  for  such  a  theoiy 
had  a  definite  origin  in  the  Saint-Simonian  effort  at 
reconstruction  after  the  Napoleonic  wars.  As  a 
devoted  follower  of  Saint-Simon,  Comte  produced,  at 
the  mature  age  of  twenty-four,  an  essay  in  which  the 

1  The  work  in  six  volumes  was  published  in  the  years  1826-42. 
»  Positive  Polity,  II,  352-357, 


388  POLITICAL   THEORIES 

philosophy  was  outlined  that  received  its  full  develop- 
ment in  the  great  works  of  his  later  years. ^  The  title 
of  the  essay,  Systeme  de  Politique  Positive,  and  the 
essentials  of  its  doctrine  were  the  same  as  those  of  the 
four-volume  work  which,  completed  in  1854,  rounded 
out  with  amazing  fulness  and  richness  the  philosophy 
of  Positivism,^ 

Like  all  the  other  Saint-Simonians  Comte  maintained 
that  a  wholly  new  method  was  indispensable  in  order 
to  reach  a  scientific  solution  of  social  problems.  The 
theories  that  had  played  the  largest  part  in  the  revolu- 
tion and  the  restoration  were  alike  absurd.  Natural 
rights,  social  contract,  written  constitutions  and  separa- 
tion of  powers  —  the  mainstays  of  the  revolutionary 
cause  —  were,  he  declared,  devices  of  imaginative 
litterateurs  and  narrow-minded  legists,  useful  for  de- 
struction of  the  old,  but  worthless  for  progress  in  the  new 
order.  Much  more  absurd  were  the  feudal-theological 
dogmas  of  the  regime  that  was  overthrown  and  of  the 
Holy  Alliance  that  was  trying  to  restore  it.  These 
reactionary  dogmas  Comte  held  to  be  as  incompatible 
with  the  facts  of  the  present  as  the  revolutionary  dogmas 
were  with  its  principles.  Of  the  three  stages  through 
which,  by  the  very  nature  of  the  human  mind,  theory 
in  every  branch  of  knowledge  is  bound  to  pass,  the 

*  The  essay  was  published  as  the  third  part  of  Saint-Simon's 
Catechism  des  Industriels.     (Euvres  de  Saint-Simon,  t.  38. 

2  The  four  volumes  have  been  translated  into  English  by  disciples 
of  Comte  under  the  title :  System  of  Positive  Polity,  or  Treatise  on 
Sociology,  instituting  the  Religion  of  Humanity.  Most  important 
for  our  purpose  is  volume  two,  containing  "  Social  Statics,  or  the 
Abstract  Theory  of  Human  Order,"  and  translated  by  Frederic 
Harrison. 


POSITIVE   SOCIAL  SCIENCE  389 

doctrine  of  divine  right  exhibits  the  theological,  that 
of  social  contract  and  individual  rights  the  meta- 
physical. The  time  appeared  ripe  to  Comte  for  the 
emergence  of  political  theory  into  the  third  stage  —  the 
scientific  or  positive.^ 

On  this  idea,  then,  rests  the  Comtian  philosophy 
of  society  and  government.  It  must  be  developed, 
Comte  holds,  by  the  method  that  has  achieved  such 
magnificent  results  m  the  physical  sciences.  It  must 
be  raised  to  a  level  with  the  other  sciences  of  observa- 
tion. It  must  cease  to  concern  itself  with  theological 
m3rths  and  metaphysical  abstractions,  and  confine  itself 
to  actual  facts  determined  by  observation  and  history. 
The  institutions  of  government  will  be  judged  not  by 
their  conformity  to  the  assumed  will  of  God  or  to  any 
ideal  of  speculative  philosophy,  but  by  their  relation  to 
the  civilization  and  general  social  conditions  amid  which 
they  are  set  up.  To  seek  a  system  of  government  that 
shall  be  absolutely  the  best,  without  reference  to  these 
conditions,  is  precisely  analogous,  Comte  says,  to  seek- 
ing in  medicine  a  method  of  treatment  that  shall  be 
imiversally  applicable  without  reference  to  the  disease 
or  the  patient.  The  absolute  must  be  avoided  in 
political  science  particularly;  for  the  absolute  in 
theory  leads  necessarily  to  the  arbitrary  in  practice. 
Absolute  law  means  arbitrary  law-maker,  and  whether 
such  law-maker  be  one  or  many,  society  suffers. 

Comte 's  line  of  approach  to  the  problems  of  political 

^  This  famous  doctrine  of  the  three  stages  was  conoisely'^for- 
mulated  in  Comte's  first  essay  on  Positive  Polity.  See  (Euvrea 
de  Saint-Simon,  t.  38,  p.  75. 


390  POLITICAL   THEORIES 

science  places  him,  thus,  in  the  inductive  and  historical 
school  that  we  have  seen  exemplified  by  Aristotle, 
Machiavelli,  Bodin  and  Montesquieu.^  He  himself 
refers  particularly  to  Montesquieu  and  Condorcet  as 
having  approximated  to  the  principles  of  Positivism, 
Montesquieu  in  having  based  his  conception  of  law  on 
facts  rather  than  dogma,  and  Condorcet  in  having  made 
progress  the  general  law  of  mankind's  social  Hfe.^ 
The  one  was  sound  in  the  importance  attributed  by 
him  to  the  influence  of  physical  facts,  though  he  ex- 
aggerated, Comte  believed,  the  effects  of  climate; 
the  other  was  soimd  in  disclosing  for  the  past  and  pre- 
dicting for  the  future  a  steady  advance  in  the  welfare 
of  humanity,  but  erred  grossly,  in  Comte's  judgment, 
as  to  the  stages  through  which  this  advance  had  pro- 
ceeded and  would  proceed.^ 

In  these  criticisms  of  his  predecessors  Comte  indi- 
cates very  well  the  character  of  his  positive  political 
science.  It  involves  first  a  philosophy  of  history,  based 
on  physical  as  well  as  moral  and  intellectual  facts, 
and  furnishing  the  scientific  law  of  social  growth  ; 
and  second,  an  analysis  of  existing  conditions  in  all 
aspects  of  social  life,  from  which  the  stage  of  advance- 
ment already  reached  may  be  precisely  determined. 
With  the  law  of  progress  known  and  the  existing  stage 
also  known,  it  will  be  as  easy  in  social  science  as  in 
astronomy  to  foretell  what  the  next  movement  will 
be.     Nor  shall  the  charge  of  deadening  fatalism  have  a 

1  See  preceding  volumes  of  this  history  under  those  names. 

^  Supra,  pp.  108  et  seq. 

*  CEuvres  de  Saint-Simon,  t.  38,  p.  148. 


ORDER  AND   PROGRESS  391 

ground  in  this  program.  The  law  of  progress  is  indeed 
fixed,  so  far  as  direction  is  concerned,  beyond  any  human 
power  to  control ;  but  the  rate  of  the  advance  is  sub- 
ject to  modification  by  physical  and  by  moral  causes 
that  may  be  measured,  and  among  the  latter  are  politi- 
cal combinations  {combinaisons  politiques). 

The  science  that  results  from  the  twofold  process 
described  above  was  at  first  named  by  Comte  "social 
physiology"  or  "social  physics."^  Later  he  invented 
the  name  "sociology."  The  two  branches  constitute 
social  statics  and  social  dynamics,  corresponding  re- 
spectively to  the  great  conceptions.  Order  and  Progress, 
that  sum  up,  in  Comte's  phrase,  the  life  of  civilized 
society.  The  principles  of  social  statics,  he  says,  received 
systematic  organization  by  Aristotle,  and  philosophy 
since  his  time  has  confined  itself  too  closely  to  this  side 
of  the  matter.  With  dynamics  united  to  it  through  a 
somid  theory  of  progress,  the  positive  science  of  society 
is  complete.  The  great  underlying  principle  of  this 
science  Comte  expressed  in  the  maxim:  "Progress  is 
the  development  of  Order."  ^ 

What,  then,  is  "  Order  "  ?  It  is  the  harmonious  organi- 
zation of  social  forces  for  the  exercise  of  social  func- 
tions. But  every  true  social  force  is  collective,  and 
involves  the  "grouping  of  several  individuals  for  a 
greater  or  less  period  of  time  around  one  pre-eminent 

*  " .  .  .  il  faut  regarder  la  science  politique  eomme  une  physique 
partieuliere,  fondee  sur  I'observatioii  directe  des  phenomSnes 
relatifs  au  developpement  collectif  de  Tespeee  humaine.  .  .  . 
Cette  physique  soeiale  est,  evidemment,  aussi  positive  qu'aucune 
autre  science  d'observation."     Ibid.,  pp.  193-4. 

2  System  of  Positive  Polity,  II,  p.  152. 


392  POLITICAL   THEORIES 

individuality."  This  means,  Comte  holds,  that  the 
idea  of  government  is  implied  in  the  idea  of  society,  and 
conversely.^  The  principles  of  organization  are  two : 
distribution  of  functions  and  combination  of  efforts. 
In  human  societies  the  varying  capacities  of  men  pro- 
duce the  varieties  in  their  functioning,  and  the  combi- 
nation of  their  energies,  in  the  presence  of  individual 
ambitions,  requires  the  cohesive  force  of  government. 

Comte's  reply  to  the  current  doctrine  that  govern- 
ment was  unnecessary  was  in  every  sense  positive. 
He  laid  it  down  flatly  that  "force  is  the  basis  of  every 
human  society."  Hobbes  he  approved  of  as  right  in 
this  doctrine.  To  look  for  an  adequate  principle  of 
social  cohesion  in  the  intellect  or  the  feeling  he  con- 
sidered absurd.  "Social  science  would  remain  forever 
in  the  cloudland  of  metaphysics  if  we  hesitated  to  adopt 
the  principle  of  force  as  the  basis  of  government."  And 
by  force  here  he  meant  physical,  material  power.^ 

Beyond  this  and  other  incidental  dogmas  as  to  the 
basic  principles  of  political  philosophy  proper,  Comte 
does  not  concern  himself  with  the  discussion  of  govern- 
ment. His  interest  is  in  other  phases  of  the  social  order 
—  in  society  rather  than  the  state.  Even  while  he 
insists  so  strongly  on  the  physical  force  that  underlies 
the  existence  of  government,  he  hastens  to  point  out  the 
equal  importance  of  intellectual,  moral  and  religious 
forces  in  its  functioning.  The  capstone  of  his  system 
proves  to  be  a  church  and  a  priesthood  in  which  are 
centred  all  the  ultimate  elements  of  social  control. 
In  the  more  or  less  mystical  vagaries  of  these  last  phases 

1  System  of  Positive  Polity,  II,  p.  223.  *  Ibid.,  p.  247. 


THE   THREE   STAGES   OF  PROGRESS  393 

of  Positivism  Comte  exhibited  a  singular  recurrence  to 
the  tendencies  that  prevailed  in  Saint-Simonism,  to- 
ward which  he  had  manifested  in  his  prime,  after  he  had 
broken  with  it,  a  not  wholly  becoming  contempt. 

Comte's  influence  was  probably  more  important  and 
more  permanent  through  his  social  dynamics  than 
through  the  social  statics.  The  philosophy  of  history 
that  is  embodied  in  his  work  ranks  with  the  greatest 
achievements  of  the  human  mind  in  generalizing  from 
the  past  the  elements  of  progress  in  civilization.  His 
doctrine  of  the  three  stages  through  which  the  develop- 
ment had  proceeded  and  must  proceed  remains  very 
influential  to  the  present  day.  Scarcely  less  so  is  his 
teaching  as  to  the  method  and  the  utility  of  history. 

The  three  stages  through  which,  as  Comte  maintains, 
humanity  advances  are  to  be  discerned  in  both  the 
material  and  the  spiritual  characteristics  of  the  succes- 
sive periods  and  in  both  their  general  and  their  specific 
features.  So  far  as  concerns  the  matters  of  political 
import  the  marks  of  the  three  stages  are  as  follows : 

1.  In  the  theological  and  military  stage  social  rela- 
tions are  determined,  both  in  general  and  in  particular, 
by  force.  Conquest  is  the  guiding  aim  of  society. 
Industry  exists  only  for  the  production  of  the  necessi- 
ties of  physical  life,  and  slavery  is  the  status  of  the 
producers. 

2.  In  the  metaphysical  and  legalistic  stage  the 
military  spirit  still  predominates,  but  industrial  condi- 
tions are  making  themselves  felt.  Slavery  gradually 
gives  way  to  serfage  and  then  to  civil,  though  not  politi- 
cal, liberty  for  the  individual.    The  growth  of  industry 


394  POLITICAL   THEORIES 

is  pronounced,  but  its  end  is  chiefly  to  promote  military 
ends.  Eventually  it  becomes  itself  the  most  important 
cause  of  war.  As  a  whole  this  stage  is  transitional  and 
indeterminate. 

3.  In  the  scientific  and  industrial  stage  industry 
has  become  dominant.  It  is  the  first  influence  in  the 
relations  of  individuals  to  one  another,  and  it  tends  to 
control  all  the  relations  of  society.  Social  activity  as 
a  whole  becomes  directed  to  the  sole  end  of  produc- 
tion, i.e.,  to  the  adaptation  of  nature  to  the  needs  of 
man,  and  in  this  is  the  essence  of  civilization. 

This  scheme  of  human  progress,  outlined  in  Comte's 
first  essay,  is  developed  in  great  detail  in  the  third 
volume  of  his  System  of  Positive  Polity.  It  permeates, 
indeed,  all  his  philosophy.  A  very  slight  knowledge  of 
the  works  of  the  Saint-Simonians  enables  one  to  per- 
ceive how  much  Comte  owed  to  the  ideas  that  prevailed 
in  their  speculation.  Of  his  independent  contribu- 
tions perhaps  the  most  striking  is  the  consistent  rein- 
forcement of  his  moral  and  political  exposition  by  the 
analogies  of  the  physical  sciences,  especially  biology. 
The  relation  of  sociology  and  biology  he  formally  de- 
scribes as  that  of  two  branches  of  a  single  science : 
the  evolutionary  process  of  humanity  is  systematically 
compared  to  that  of  individual  man,  and  the  charac- 
teristics of  organic  life  are  attributed  to  society  almost 
as  freely  as  to  the  human  being. ^  Nothing  more  need 
be  said  to  suggest  the  kinship  of  Comte's  sociology  to 
the  system  that  immediately  followed  his  —  the  Syn- 
thetic Philosophy  of  Herbert  Spencer. 

'  See  Coker,  Organismic  Theories  of  the  State,  chap.  !v. 


SOCIETARIAN   DOCTRINE  395 

8.  Herbert  Spencer 

By  the  middle  of  the  nineteenth  century,  when  Spen- 
cer began  to  write,  the  idea  of  transformation,  develop- 
ment, growth,  as  characteristic  of  society  and  all  its 
institutions,  had  become  ingrained  in  social  science. 
Moreover  the  direction  of  the  flow  of  things  was  almost 
universally  conceived  to  be  progressive  —  toward  a 
condition  that  on  one  ground  or  another  was  held  to  be 
better  than  what  was  passing  away.  Spencer  shared 
fully  in  the  prevailing  fashion  in  social  speculation, 
and  by  his  remarkable  gifts  of  thought  and  expression 
shaped  forth,  as  the  explanation  of  all  social  as  well  as 
other  life,  the  theory  of  evolution.  The  elements  of  his 
theory  had  appeared  in  antecedent  philosophy,  but 
he  combined  them  with  a  precision  and  power  that  left 
no  doubt  as  to  his  own  contribution,  and  he  so  candidly 
acknowledged  his  entire  ignorance  of  his  predecessors 
that  his  claim  to  originality  cannot  be  disputed.^ 

Primarily  he  finds  the  principle  of  evolution  exhibited 
in  material  phenomena.     It  appears  in  the  transforma- 

^  The  origin  and  development  of  his  system  of  philosophy  are 
set  forth  in  much  detail  and  with  resolute  fidelity  to  what  he  be- 
lieves to  be  the  truth  in  Spencer's  Autobiography.  The  leading 
features  of  his  system  recur  frequently  in  his  voluminous  writings 
on  multifarious  subjects  from  1850  on.  In  1860  he  announced 
a  series  of  volumes  that  should  present  the  whole  of  the  Synthetic 
Philosophy.  The  series  was  not  entirely  completed  at  his  death, 
but  many  of  the  volumes  had  appeared  in  several  editions,  with 
significant  modifications.  For  the  present  purpose  the  important 
works  are  First  Principles,  Principles  of  Sociology,  Data  of  Ethics, 
and  Justice.  I  have  used  the  last  revisions  of  these,  together  with 
the  edition  of  Social  Statics  and  the  Man  versus  the  State  that  was 
published  in  1892  as  a  sort  of  tailpiece  to  the  great  system  of  which 
the  original  edition  of  the  Social  Statics  was  the  beginning.  The 
American  edition  of  the  works  has  been  used  throughout. 


396  POLITICAL   THEORIES 

tion  of  matter  from  "an  indefinite,  incoherent  homo- 
geneity to  a  definite,  coherent  heterogeneity,"  as  in  the 
development  of  the  earth  from  a  uniform  hquid  mass 
to  the  diversified  form  and  structure  that  we  see.  Fur- 
ther, the  same  principle  pervades  the  organic  universe 
and  appears  in  the  series  of  vegetable  and  animal  species 
from  the  simplest  to  the  most  complex  —  from  protozoa 
to  man.  Finally  the  law  of  evolution  is  equally  clear 
to  view  in  the  life  and  development  of  society.  The 
life  history  of  the  social  group  of  men  shows  the  same 
process  of  development  as  the  life  history  of  the  human 
animal.  Spencer  sets  forth  with  a  very  special  interest 
the  operation  of  the  law  by  virtue  of  which  the  simple 
incoherent  society  of  primitive  men  grows  into  the 
coherent  and  highly  complex  structure  of  modern  civil- 
ized society  in  the  same  way  in  which  the  anthropoid 
ape  grew  into  the  homo  sapiens,  and  the  same  way  in 
which  the  foetus  becomes  the  philosopher.  This  con- 
stitutes the  essence  of  the  Spencerian  sociology.^ 

The  development  of  the  science  is  presented  through 
the  classification  of  social  phenomena  under  the  heads 
of  domestic,  ceremonial,  political,  ecclesiastical,  pro- 
fessional and  industrial  institutions.  Each  class  is 
exhaustively  and  systematically  treated  in  the  light 
of  the  evolutionary  principle  and  process.  It  is  in  the 
part  on  political  institutions  that  we  are  particularly 
interested.^ 

1  This  name  Spencer  deliberately  adopted  from  Comte.  On  the 
other  hand  the  title  "Social  Statics,"  which  Spencer  gave  to  his 
first  important  book,  was  chosen  in  ignorance  of  the  fact  that  Comte 
had  already  given  that  name  to  one  part  of  his  sociology.  See 
Spencer,  Autobiography,  I,  414. 

2  Principles  of  Sociology,  II,  p.  229. 


SOCIETY  AND   GOVERNMENT  397 

Society  has  already  been  defined  by  Spencer  as  an 
organism  —  as  essentially  in  the  same  class  with  physical 
beings  having  life.^  His  exposition  of  the  structure 
and  life  of  society  is  expressed  almost  wholly  in  terms 
of  the  physical  structure  and  life  of  human  or  other 
animals.  Of  all  the  philosophers  who  have  throughout 
the  ages  marked  the  likeness  of  the  social  group  to  the 
individual  none  has  exhibited  more  ingenuity  or  more 
plausible  an  appearance  of  scientific  precision  than  Spen- 
cer.^ PoHtical  institutions  share  the  character  and 
development  of  the  larger  entity  of  which  they  are  an 
element,  and  therefore  the  organization  and  activity 
of  government  are  interpreted  by  the  same  analogies  of 
organic  life. 

It  is  to  be  borne  in  mind  that  Spencer,  like  the  Utili- 
tarians with  whom  he  was  in  close  relations,  had  no 
distinction  in  thought  between  state  and  government. 
Or  better,  he  recognized  no  such  entity  as  the  state, 
in  the  sense  in  which  we  have  previously  used  it,  but 
considered  society  and  government  as  together  em- 
bodying all  that  was  involved  in  the  fundamental 
categories  of  political  science. 

Government,  then,  was  to  him  the  sum  of  the  institu- 
tions of  society  concerned  with  that  conscious  and  in- 
voluntary cooperation  of  individuals,  which,  along 
with  their  spontaneous  and  voluntary  cooperation, 
must  be  regarded  as  essential  to  life  in  association  with 
one  another.     The  relative  scope  and  intensity  of  these 

1  Principles  of  Sociology,  I,  pp.  447  et  seq. 

2  For  a  good  account  of  this  sort  of  political  theorizling  in  the 
nineteenth  century,  see  Coker,  Organismic  Theories  of  the  State, 
New  York,  Longmans,  1910.     The  account  of  Spencer  is  at  p.  124. 


398  POLITICAL  THEORIES 

two  species  of  cooperation  vary,  he  points  out,  with  the 
circumstances  of  the  particular  society.  The  clear 
predominance  of  the  one  or  the  other  species  is  the 
criterion  of  distinction  between  the  two  great  types  of 
society,  the  militant  and  the  industrial.  The  com- 
parison of  these  types,  with  the  conclusion  that  the 
industrial  is  the  higher  and  the  goal  of  social  evolu- 
tion, furnishes  us  with  Spencer's  version  of  the  idealism 
that  appeared  in  the  visions  of  Saint-Simon  and  Comte. 
Spencer  reaches  his  conclusion  through  a  brave  array 
of  physiological  and  biological  parallels  and  analogies ; 
and  he  sustains  his  views  by  extensive  references  to 
history,  especially  the  history  of  primitive  and  un- 
civilized peoples.  The  methodology  of  strictly  in- 
ductive science  is  scrupulously  respected.  What  re- 
sults, so  far  as  political  theory  is  concerned,  is  a  series 
of  doctrines  that  are  substantially  identical  with  those 
propounded  a  priori  by  Spencer,  long  before  his  philoso- 
phy of  evolution  had  taken  shape.  In  essence  these 
doctrines  constitute  an  extreme  individualism,  verging 
on  anarchism,  and  based  on  the  philosophy  of  natural 
law  and  natural  rights  that  dominated  the  era  of  revolu- 
tion. At  several  points  the  maintenance  of  the  individ- 
ualistic thesis  strains  and  distorts  the  sociological  sys- 
tem, in  general  a  model  of  symmetry  and  consistency. 
His  social  ethics,  among  the  last  of  his  systematic  writ- 
ings, reveals  very  clearly  that  the  connection  between 
evolution  and  individualism  as  he  puts  it  is  imreal  and 
illogical.^ 

^  The  demonstration  of  this  has  been  a  frequent  exercise  of 
Spencer's  critics.     Cf.  Barker,  Political  Thought  from  Spencer  to  the 


NATURAL  RIGHTS  AND  JUSTICE  399 

Spencer  maintains  and  defends  the  conceptions  of 
natural  rights  and  natural  law  so  far  as  the  essence  of 
the  ideas  is  concerned,  though  he  wholly  rejects  the 
method  by  which  earlier  philosophy  reached  and  de- 
fended them.  He  accepts  the  social  contract  as  a 
theoretical,  though  not  a  historical,  basis  of  political 
authority  and  institutions.-^  The  free  enjoyment  of 
his  natural  rights  by  the  individual  becomes  therefore 
in  the  familiar  way  a  limit  upon  the  governmental 
authority.  Spencer's  ethics  by  a  happy  coincidence 
produces  conclusions  that  confirm  this  doctrine ; 
for  he  finds  that  the  evolution  of  all  organic  life,  from 
jelly-fish  to  man,  manifests  the  principle  that  good  (i.e., 
the  preservation  of  the  species)  is  attained  when  each 
individual  receives  the  benefits  and  the  evils  of  its  own 
nature  and  its  consequent  conduct.  In  human  life  this 
means  that  each  individual  must  receive  justice ; 
justice  means  that  "every  man  shall  be  free  to  do  what 
he  wills,  provided  he  infringes  not  the  equal  freedom  of 
any  other  man  " ;  and  this  freedom  means  that  every 
man  shall  enjoy  his  natural  rights.^ 

Present  Day,  chap,  iv ;  Political  Science  Quarterly,  Vol.  VIII,  p.  182. 
This  last  reference  is  to  a  review  of  Spencer's  volume  on  Justice  writ- 
ten by  myself  twenty-eight  years  ago.  As  a  re-reading  of  Spencer 
has  confirmed  the  opinions  therein  expressed,  I  have  ventured  to 
incorporate  some  paits  of  the  article  in  the  following  paragraphs. 

1  In  The  Man  versus  the  State,  published  in  1884.  In  Social 
Statics  (1850)  he  assails  the  social  contract  idea,  on  the  ground  that 
the  social  organism  must  result  from  unconscious  development 
rather  than  conscious  will.  The  inconsistency  here'  is  rather  in 
expression  than  in  thought ;  for  his  characteristic  contention  is 
that  society  grows  but  the  state  (government)  is  made. 

2  This  doctrine  appears  in  the  fullest  and  most  systematic  form 
in  the  Data  of  Ethics  and  Justice,  but  pervades  many  others  of 
Spencer's  works. 


400  POLITICAL  THEORIES 

As  to  the  content  of  this  natural  Hberty,  Spencer's 
wide  ranging  among  the  lower  animals  and  primitive 
men  brings  to  light  no  rights  not  already  discovered  by 
the  eighteenth-century  philosophers  with  much  less 
effort.  Life,  liberty  and  the  pursuit  of  happiness  would 
sum  up  Spencer's  list ;  and  he  steadfastly  insists  that 
the  whole  function  of  the  state  consistent  with  right  and 
justice  is  to  insiue  these  ends  to  the  individuals  within 
it.  The  state  as  such  has  no  life  and  personality  the 
perfection  of  which  can  be  a  topic  of  ethical  doctrine.^ 
Right  and  wrong  cannot  be  predicated  of  the  acts  in 
which  its  existence  is  preserved.  Nor,  on  the  other 
hand,  can  the  termination  of  that  existence  be  viewed 
with  any  other  feeling  than  that  with  which  one  records 
the  disappearance  of  a  toe  or  a  tail  or  other  organ  in  the 
course  of  development  of  some  animal  species. 

For  Spencer  reads  the  doom  of  the  state  (government) 
in  the  law  of  evolution  that  governs  the  life  of  society. 
The  militant  type  will  steadily  decline  with  the  decline 
of  war,  and  the  industrial  type  will  prevail ;  the  regime 
of  status  will  give  way  to  the  regime  of  contract.  The 
system  exemplified  by  the  Bodo,  the  Dhimals,  the 
Pueblos,  the  Todas  and  the  peaceful  Arafuras  will  super- 
sede that  which  is  embodied  in  the  record  of  Sparta, 

*  Spencer's  use  of  terms  in  this  matter  is  confusing.  He  speaks 
of  the  state  as  "  the  society  in  its  corporate  capacity,"  but  denies 
to  the  state  characteristics  that  he  ascribes  to  the  society.  While 
the  society  is  clearly  an  organism,  the  state  apparently  is  not.  The 
statfe  is  not  an  ethical  entity,  but  it  has  duties ;  society  is  without 
sentiency,  but  exercises  will.  Much  of  the  confusion  involved  in  such 
statements  would  probably  be  avoided  if  Spencer  had  consistently 
used  "government"  instead  of  "state,"  and  had  refrained  from 
identifying  either  with  "  society." 


GOVERNMENT  PASSES  AWAY  401 

Rome,  Russia  and  Germany.^  England  and  the  United 
States  are  nearest  to  the  social  and  political  system  to- 
ward which  the  evolution  of  the  race  is  moving.  Rep- 
resentative ideas  in  government  will  prove  increasingly 
necessary  as  society  becomes  peaceful  and  industrial. 
The  executive  will  become  elective  rather  than  heredi- 
tary. Party  antagonisms  will  pass  away ;  for  they  ex- 
press in  general  the  conflict  of  the  militant  and  the 
industrial  systems,  and  as  the  industrial  comes  to  pre- 
vail the  party  differences  will  disappear.  Individual- 
ism will  thus  assert  itself  freely ;  and  under  the  same 
influences  decentralization  and  local  self-government 
will  prevail.  The  institutions  and  functions  of  political 
authority  will  decrease  and  will  be  limited  to  what  is 
required  for  the  maintenance  of  justice. 

While  Spencer  refrains  from  any  positive  forecasting 
of  actual  society  without  government,  the  suggestion 
of  such  an  idea  frequently  appears  in  his  thought.  His 
ethical  doctrine  contemplates  the  development  of 
altruism  to  such  a  point  that  coercion  will  no  longer 
be  necessary  for  the  maintenance  of  the  natural  rights 
of  the  individual,  i.e.,  justice.  The  inference  is  un- 
avoidable that  government  will  be  unnecessary :  vol- 
untaiy  will  have  wholly  supplanted  compulsory  co- 
operation. 

Again,  he  asserts  that  war,  which  is  to  him  the  chief 
cause  of  compulsory  cooperation,  has  exhausted  its 
utihty  in  the  evolution  of  man.  It  has  peopled  the 
earth  with  powerful  and  intelligent  races ;  and  integra- 
tion of  such  groups  has  proceeded  "  as  far  as  seems  either 

1  Principles  of  Sociology,  part  v,  chaps,  xvii-xviii,  in  Vol.  II. 
2d 


402  POLITICAL   THEORIES 

practicable  or  desirable."  ^  It  has  developed  in  men  a 
stupendous  power  of  continuous  application,  which 
industrial  effort  and  competition  may  be  depended  on 
adequately  to  maintain.  Hence,  with  the  disappear- 
ance of  war,  the  mainstay  of  political  institutions  is 
boimd  to  disappear. 

There  is  implicit  thus  in  the  Spencerian  philosophy 
the  conception  of  an  absolute  end  in  social  evolution 
that  is  good  and  desirable  in  itself.  To  reconcile  this 
conception  with  the  first  piinciple  of  evolution  as  the 
law  of  life  is  a  problem  without  a  solution.  For  life  in 
general  is  regarded  as  a  process  of  never-ending  change, 
while  in  the  life  of  the  human  social  organism  change  is 
to  cease  when  conditions  are  reached  that  realize 
justice.^ 

9.  General  Influence  of  Societarian  Theory 

In  a  general  way  the  relation  of  the  doctrine  described 
in  this  chapter  to  the  contemporary  doctrine  of  con- 
stitutionalism and  of  nationalism  was  as  follows.  As- 
suming the  distinction  between  society,  state  and  gov- 
ernment, constitutionalism  tended  to  ignore  the  state 
and  stress  government,  while  societarian  theory  put 
both  state  and  government  in  the  background  and  con- 
centrated attention  on  society.  The  relation  to  na- 
tionalistic  theory   was   less   simple.    Both   socialism 

^  Principles  of  Sociology,  II,  664. 

2  Spencer  seeks  to  evade  this  inconsistency  by  distinguishing 
the  social  organism  from  the  individual  organism  as  "discrete" 
and  "concrete"  respectively,  and  by  denying  to  the  one  certain  of 
the  attributes  assigned  to  the  other.  These  devices  create  more 
inconsistencies  than  they  remove.  Pririciples  of  Sociology,  I,  460 
et  seq.     Cf.  Barker,  op.  cit.,  p.  118. 


SOCIETY,  NATION,   PEOPLE  403 

and  sociology  gave  support  to  the  conception  of  na- 
tionality by  the  emphasis  they  laid  on  the  appeal  to 
history  and  to  sentiment.  The  Utopian  socialists  based 
their  doctrines  on  the  past  and  present  conditions  of 
their  respective  fatherlands;  the  unit  of  Stein's  and 
Comte's  sociology  was  in  large  measure  France  or 
Germany  or  England.  But  Marxian  socialism  and 
Spencerian  sociology  cut  across  the  nationalistic  idea 
by  emphasizing  mankind  in  general.  Both  found  the 
classes  and  the  interests  that  were  common  to  many  or 
all  communities  a  sounder  basis  of  social  and  political 
theory  than  any  merely  national  or  merely  constitu- 
tional class  or  interest  or  institution. 

Another  obvious  tendency  of  the  societarian  doctrines 
was  to  renew  with  special  features  the  eternal  debate  as 
to  the  identity  and  characteristics  of  "the  people." 
While  constitutionalism  and  nationahsm  were  in  general 
content  with  a  "people"  that  was  the  triumphant 
Third  Estate  of  the  revolution,  socialism  and  sociology 
reclassified  the  population,  chiefly  according  to  economic 
principle,  and  erected  a  new  conception  of  "people" 
on  the  result.  The  Saint-Simonians,  while  admitting 
to  a  place  in  society  only  active  producers  of  social 
goods,  retained  among  these  as  leaders  the  intellectual 
class.  Marx  and  his  followers  went  to  the  limit  in 
the  direction  of  leadership  by  a  single  class,  and 
assigned  the  dominant  role  in  the  life  of  society  to  the 
proletariat  —  a  pitiless  and  uncompromising  democ- 
racy of  mere  numbers.  A  somewhat  similar  distinc- 
tion appeared  in  a  comparison  of  the  sociology  of  Comte 
with    that    of    Spencer,  —  the    one    looking  to    the 


404  POLITICAL  THEORIES 

natural  and  pacific  leadership  of  the  spiritually  gifted 
class,  the  other  to  a  ceaseless  struggle  for  existence  be- 
tween shifting  groups,  the  source  and  limit  of  whose 
activity  should  be  the  rights  and  interest  of  the  indi- 
vidual man. 

So  far  as  the  organization  of  government  is  considered 
at  all  by  the  societarian  philosophers,  their  inclination 
is  for  the  most  part  toward  representative  institutions. 
The  basis  of  the  system  they  suggest  usually  shows  a 
curious  reversion  to  the  mediaeval  type.  Economic  and 
social  groups  and  interests  are  preferred  to  units  of  popu- 
lation or  territory  as  the  things  to  be  represented.  Such 
an  idea  expresses  the  reaction  against  the  dogmas  of 
revolutionary  democracy  as  embodied  in  the  institu- 
tions of  the  bourgeoisie ;  but  it  is  startling  to  find  in 
socialism  the  conceptions  that  were  so  conspicuous  in  the 
conservatism  of  Burke  and  the  more  extreme  defenders 
of  the  ancien  regime. 

As  to  the  source  and  scope  of  the  authority  to  be 
exercised  by  governmental  organs  the  systems  consid- 
ered in  this  chapter  offer  the  extremes  of  divergence. 
We  may  designate  as  the  socialistic  type  that  doctrine 
which  ascribes  to  society,  through  its  political  organs, 
unlimited  power  to  shape  the  lives  of  its  individual 
members  to  its  needs,  and  as  the  anarchistic  type  that 
doctrine  which  tends  to  deny  the  need  of  any  power 
whatever  by  society  over  the  lives  of  its  members.  On 
this  basis  the  Saint-Simonians,  Comte  and  the  Marx- 
ians are  sharply  distinguished  from  Godwin,  Proudhon 
and  Spencer.  The  one  group  regards  regulation  and 
direction  indispensable  to  the  existence  of  a  society, 


SOCIALISTS  AND   ANARCHISTS  405 

whether  the  requisite  power  to  regulate  and  direct  re- 
sults from  the  peaceful  acquiescence  of  the  less  in  the 
sway  of  the  more  intelligent,  or  in  the  submission  of  the 
less  to  the  greater  number  through  the  pressure  of  brute 
force.  The  other  group  regards  constraint  upon 
individuals  in  the  name  of  state,  society  or  government 
as  evil  per  se  —  as  without  warrant  in  the  nature  of 
man  or  of  things  in  general.  To  this  latter  group 
man  is  indeed  a  social  being,  irresistibly  drawn  into 
life  in  communion  with  his  kind ;  but  the  root  of  the 
impulse  is  held  to  be  sympathy,  fellow  feeling,  the  sense 
of  hkeness  and  equality,  not  self-interest,  inequality 
and  the  craving  for  mastery.  Institutions  that  express 
the  latter  motives  are  considered  perversions  of  human- 
ity, and  in  this  category  fall  what  are  called  state  and 
government.  For  these  terms,  together  with  "  society  " 
itself,  signify  to  the  anarchists  nothing  more  than 
cooperating  groups  of  individual  men,  and  in  the  ac- 
tions of  these  groups  no  attribute,  motive  or  standard  of 
right  and  wrong  is  involved  save  those  of  the  component 
individuals.^ 

The  ancestry  of  the  doctrines  discussed  in  this  chap- 
ter is  easily  traceable.  They  derive  from  the  law  of 
nature  and  the  rights  of  man  that  were  exploited  in  the 
eighteenth    century    and    its    revolutions.     Socialism 

[■  *  The  inclusion  of  Spencer  with  Godwin  and  Proudhon  in  the 
anarchistic  class  may  seem  unreasonable.  His  organismic  doctrine 
suggests  a  marked  distinction.  Yet  he  drops  the  idea  of  organism 
whenever  he  deals  with  the  sphere  of  government,  and  the  recon- 
ciliation of  his  doctrines  on  these  two  points  is  impossible.  It  is 
fair  to  judge  him,  therefore,  on  the  one  alone,  that  is,  the  scope  of 
state  power.  As  to  this,  it  cannot  be  questioned  that  he  is,  if  not 
all  the  way  over  to  the  anarchists,  at  least  nearer  to  them  than  to 
the  socialists. 


406  POLITICAL  THEORIES 

took  up  for  development  the  dogmas  of  liberty  and 
equality  that  Locke^  Rousseau  and  Jefferson  had  pro- 
pounded. Sociology,  in  contrast,  developed  the  princi- 
ples and  method  of  Montesquieu  and  Ferguson  and 
Haller.  Of  the  natural  rights  that  figured  in  the  lists 
of  the  revolution,  that  of  private  property  became  the 
centre  of  societarian  interest.  To  find  in  "nature" 
both  the  equality  of  all  men  and  the  inequality  inci- 
dent to  property  right,  had  been  an  embarrassing 
problem  for  the  revolutionary  parties  and  a  prolific 
occasion  for  jeers  from  the  conservatives.  Socialism 
took  its  stand  on  equality  and  rejected  any  conception 
of  property  that  conflicted  with  it.  What  the  revolu- 
tion did  to  landed  property  by  confiscation  in  the  name 
of  the  nation  and  political  right,  socialism  aimed  to  do 
to  capitalistic  property  in  the  name  of  society  and  social 
right.  The  relation,  thus,  to  the  theories  of  the  genera- 
tion immediately  preceding  was  close,  but  equally 
obvious  were  the  remoter  relationships  to  the  specula- 
tions of  Plato,  More,  Campanella  and  others,  who  had 
seen  in  property  the  bane  of  humanity. 

Sociology  also,  as  well  as  socialism,  endorsed  in  the 
main  the  dogmas  of  the  revolution.  Comte  and  Spen- 
cer reached  in  their  respective  methods  conclusions  in 
harmony  with  those  of  the  eighteenth-century  philoso- 
phy. As  to  property,  they  both  found  it  an  institu- 
tion inseparabl}''  wrought  into  the  fabric  of  human  so- 
ciety from  its  beginnings.  Whatever  evils  might  be 
due  to  the  capitalistic  form  developed  in  recent  times 
Comte  made  mitigable  by  the  infinite  wisdom  of  his 
governing  priesthood.     Spencer,  having  in  1850  pro- 


GROWTH   OF  THE   NEW  DOCTRINES  407 

nounced  against  the  sanctity  of  property  in  land, 
reached  in  the  full  development  of  his  system  the  con- 
clusion that  property  was  no  less  inmiovably  fixed  in 
nature  than  any  other  of  the  rights  of  man. 

As  to  the  posterity  of  the  doctrines  of  the  chapter, 
the  subject  is  not  strictly  within  the  scope  of  this  his- 
tory. It  may  be  briefly  noted,  however,  that  both 
socialism  and  sociology  have  waxed  mightily  in  impor- 
tance during  the  generation  since  1880.  Their  methods 
and  their  dogmas  have  at  times  superseded  in  interest 
and  influence  the  older  systems  of  constitutional  and 
nationalistic  reflection.  General  political  theory  has 
been  greatly  modified  by  this  development.  An  iUustra- 
tion  of  the  way  in  vvhich  this  has  taken  place  appears 
in  the  theory  of  the  state  that  was  put  forth  just  at  the 
close  of  our  period  by  Ludwig  Gumplowicz,  the  Aus- 
trian publicist.^  He  blends  the  sociological  dogma  of 
endless  evolutionary  change  under  the  operation  of  the 
laws  of  physical  nature  with  the  socialistic  dogma  of 
class  war,  expanded  to  include  the  conflicts  of  ethnic, 
religious  and  other  as  well  as  economic  classes.  Society 
he  considers  a  group  of  classes,  each  struggling  for  the 
promotion  of  its  particular  interest,  and  the  state  the 
organization  through  which  the  class  whose  interest  is 
dominant  controls  the  rest.  The  implications  of  such 
doctrine  need  not  be  dwelt  upon.  They  suggest  to  any 
reflecting  spirit  the  importance  of  societarian  specula- 
tion in  the  history  of  political  theory. 

*  For  a  full  and  excellent  exposition  of  the  thought  of  Gum- 
plowicz see  the  article  by  Dr.  H.  E.  Barnes  in  the  Journal  of  Race 
Development,  Vol.  IX,  no.  4  (April,  1919).  Cf.  also  Political  Science 
Quarterly,  IX,  140. 


408  POLITICAL  THEORIES 


SELECT  REFERENCES 

Barker,  Political  Thought  in  England,  chap.  iv.  The  Com- 
munist Manifesto.  Comte,  Positive  PoUty,  IV,  pp.  527-586. 
Fourier,  Gide's  Introduction  to  Selections.  Godwin,  PoUtical 
Justice,  Book  V,  chaps.  22-24;  Book  VIII,  chaps.  1,  2.  Janet, 
Saint-Simon  et  le  Saini-Simonisme.  Menger,  Right  to  the  Whole 
Produce  of  Labor,  sec.  i,  and  Foxwell's  Introduction.  John  Mor- 
ley,  Miscellanies,  III,  p.  337  (Comte).  Owen,  Book  of  the 
New  Moral  World,  Part  VI.  Proudhon,  What  is  Property? 
(translation),  especially  chaps,  ii,  iii  and  v.  Saint-Simon,  CEuvres, 
XXIir  {Le  Nouveau  Christianisme) ;  XLI,  pp.  34-58.  Sim- 
khovitch,  Marxism  versus  Socialism,  chaps,  ii,  iii,  viii  and  ix. 
Spencer,  The  Man  versus  the  State,  especially  Part  IV.  Stein, 
Der  Begriff  der  Gesellschaft,  pp.  xxix-xliv. 


CHAPTER  X 

THE  GENERAL  COURSE  OF  POLITICAL  THEORY 

In  the  three  volumes  of  which  this  is  the  last  we  have 
ranged  from  the  days  of  Socrates  to  those  of  Herbert 
Spencer.  From  Socrates  to  Spencer  was  a  lapse  of 
twenty-three  centuries.  A  history  covering  that  period 
must  record  the  acts  and  the  thoughts  of  some  seventy 
generations  of  men.  Seventy  times  self-conscious 
reflection  on  matters  of  political  theory  received  its 
impress  from  a  different  set  of  minds.  To  enlarge  on 
the  diversity  of  the  environment,  material  and  spiritual, 
in  which  these  various  generations  lived  would  be  but 
commonplace  and  tedious.  It  is  appropriate  here, 
however,  having  concluded  our  review  of  the  changes 
in  doctrine  during  this  long  period,  to  consider  the 
general  effects  of  the  process  on  political  theory. 
Comparing  the  fourth  century  B.C.  with  the  nine- 
teenth century  a.d.,  do  we  find  the  principles  and  the 
problems  of  speculative  politics  essentially  different  or 
essentially  the  same?  If  they  are  substantially  dif- 
ferent, is  the  later  condition  the  culmination  of  a 
progressive  change  in  a  uniform  direction?  or  is  it 
merely  a  stage  in  a  series  of  haphazard  and  never-end- 
ing transformations  ? 

The  actual  existence  of  government  —  of  societies 
characterized  by  the  control  of  man  by  man  — was  a  fact 
of  unbroken  experience  throughout  those  ages.     Specu- 

409 


410  POLITICAL  THEORIES 

lation  on  the  subject  fell  chiefly  under  two  heads : 
first,  the  organization  and  institutions  through  which 
this  control  should  be  exercised;  second,  and  more 
fundamental,  the  source,  origin  and  rational  justifica- 
tion of  governmental  authority  in  any  form.  Let  us 
review  the  course  of  doctrinal  development  on  each  of 

these  topics. 

I 

When  we  consider  the  forms  and  agencies  in  and 
through  which  control  of  man  by  man  should  be  exer- 
cised, we  find  some  evidence  of  progressive  modification 
in  theory  in  the  twenty-three  centuries.  A  conspicuous 
instance  is  offered  by  the  institution  of  domestic  slavery. 
While  a  social  and  economic  rather  than  a  strictly 
political  institution,  it  presented  the  extreme  case  of 
authority  in  man  over  man.  Greek  theory  justified  it 
by  the  dogma  that  nature  made  men  unequal ;  Roman 
theory  by  the  compact  of  vanquished  and  victor  in  war ; 
mediaeval  Christian  theory  by  the  doctrine  of  God's 
penalty  for  sin ;  modern  theory  by  all  the  foregoing, 
together  with  the  dogmas  of  race  inequality  and  social 
expediency.  Against  all  these  various  doctrines  was 
urged  from  the  beginning  the  contention  that  by  the 
decree  of  nature  and  of  God  men  were  free  and  equal, 
and  that,  whatever  the  basis  for  the  subjection  of  the 
individual  to  society  or  the  state,  there  was  none  for 
his  subjection  to  another  individual.  This  view,  held 
by  but  few  thinking  men  in  the  fourth  century  B.C., 
became  in  the  nineteenth  century  a.d.  generally 
prevalent,  and  was  a  concomitant  of  the  widespread 
individuahsm  of  the  time. 


FORMS   OF   GOVERNMENT  411 

In  respect  to  the  broad  forms  of  organization  in  which 
political  authority  may  be  manifested;  the  history  of 
theory  shows  little  variation  throughout  the  twenty- 
three  centuries-  The  Greeks  differentiated  monarchy, 
aristocracy  and  democracy,  and  the  classification  re- 
mained without  much  modification  thereafter.  In 
Roman  days,  but  chiefly  through  the  influence  of  the 
Greek  Polybius,  the  "mixed"  form  was  added  to  the 
original  three,  and  it  continued  to  play  a  large  part  to 
the  end.  This  expressed,  however,  no  novel  element 
of  primary  principle.  In  modern  theory  was  manifest 
the  same  lack  of  precision  as  in  the  ancient  respecting 
the  basis  of  the  classification.  Aristotle  pointed  out 
that  aristocracy  and  oligarchy  were  distinguished  from 
democracy  sometimes  by  reference  to  the  number  of  the 
ruling  body,  sometimes  by  reference  to  birth  or  wealth 
or  intelligence.  Modern  thought  exhibited  the  same 
inconsistency ;  and  it  followed  earlier  generations  also 
in  emphasizing  the  role  of  the  aristocracy  of  intelligence, 
illustrating  thus  the  class  interest  of  the  philosophers. 

After  Bodin  made  clear  the  distinction  between  state 
and  government  he  applied  the  original  threefold  classi- 
fication to  both  state  and  government,  but  rejected  the 
mixed  form  in  respect  to  the  state.  With  the  rise  of 
the  popular-sovereignty  doctrine  through  Locke  and 
Rousseau  it  became  the  prevailing  idea  that  the  state 
was  in  all  cases  the  same  —  that  is,  that  the  community 
as  a  whole  was  always  the  depositary  of  the  supreme 
authority,  while  the  terms  monarchic,  aristocratic, 
democratic  and  mixed  aU  applied  only  to  the  organiza- 
tion of  the  government.    This  distinction  was  not 


412  POLITICAL  THEORIES 

fully  and  consciously  developed  in  earlier  political 
theory.  The  ancients  thought  of  the  three  forms  as 
designating  the  exercise  of  both  supreme  and  sub- 
ordinate governmental  authority  by  either  an  indi- 
vidual or  one  social  class,  in  a  society  that  included 
several  classes.  The  ruling  class  was  both  state  and 
government.  The  doctrine  of  Marx,  Gumplowicz  and 
other  societarian  theorists  that  class  rule  is  normal 
and  inevitable  was  a  conscious  reversion  to  the  ancient 
way  of  thinking. 

Along  with  the  classification  of  polities  arose  the 
effort  of  the  ancient  thinkers  to  determine  a  normal 
order  in  which  the  different  forms  were  bound  to 
appear  and  succeed  one  another  in  the  same  com- 
munity. Speculation  on  this  subject  remained  charac- 
teristic of  political  theory  from  beginning  to  end  of  the 
period  of  our  history.  The  motives  that  impelled  the 
philosophers  were  as  various  as  the  methods  employed 
and  the  results  they  reached.  In  the  moderns  appeared 
a  basis  of  historical  information  that  was  longer  in  time, 
broader  in  space,  and  more  accurate  in  detail,  and  an 
interest  that  was  centred  more  in  social  than  in  dis- 
tinctively political  phenomena.  Yet  when  one  com- 
pares the  a  priori  and  fanciful  teachings  of  Plato  with 
those  of  Rousseau  and  the  Saint-Simonians  concerning 
the  rise  and  progress  of  political  organizations  among 
men,  and  the  more  sober  and  scientific  treatment  of  the 
same  subject  by  Aristotle  and  Polybius  with  that  by 
Vico  and  Comte,  it  will  require  much  hardihood  to 
pronounce  that  the  moderns  manifest  a  great  progress 
in  the  philosophy  of  government. 


REPRESENTATIVE   GOVERNMENT  413 

One  species  of  polity  that  was  unknown  and  un- 
conceived  in  the  fourth  century  B.C.  became  famihar 
first  in  the  nineteenth  century  a.d.  This  was  the 
repubhc,  in  the  sense  of  representative  democracy. 
Representation,  as  a  principle,  does  not  appear  in 
political  theory  until  the  later  centuries  of  Rome,  when 
the  Prince  was  regarded  as  the  representative  of  the 
Roman  people  taken  collectively.  With  some  modi- 
fication the  idea  played  a  r61e  in  the  constitutional 
politics  of  the  mediaeval  Empire.  In  the  fourteenth 
century,  in  connection  with  the  conciliar  movement  in 
the  church,  the  theory  that  a  body  of  delegates,  appor- 
tioned among  constituencies  that  comprehended  the 
whole  people,  was  the  only  logical  representative  of 
the  people,  was  formu^ated  by  Marsiglio  and  Ockam. 
It  achieved  little  recognition  in  either  ecclesiastical 
or  secular  politics.  Only  in  the  seventeenth  century 
did  the  doctrine  of  representation  come  prominently 
into  discussion,  and  then  mainly  in  connection  with 
that  English  conception  of  the  people  which  took  cogni- 
zance merely  of  existing  and  ancient  groups  of  persons 
in  historical  corporations  and  counties.  Delegates 
chosen  by  these  constituencies  formed  one  element 
in  the  Parliament  that,  with  the  King,  embodied  the 
supreme  authority. 

Finally,  through  the  American  and  the  French 
revolutions,  theory  and  practice  in  the  nineteenth  cen- 
tury united  to  produce  the  representative  democracy 
as  the  typical  republic.  In  this  the  chief  organ  of  state 
and  government  alike  is  to  be  an  assembly  of  representa- 
tives chosen  by  constituencies  that  are  geographically 


414  POLITICAL  THEORIES 

compact  and  numerically  equal.  The  implication  of 
democratic  equality  in  this  conception  of  a  repubhc  is 
sufficiently  obvious;  yet  there  has  never  failed  to  be 
manifest  the  idea,  carried  to  its  extreme  by  Rousseau, 
that  a  real  democracy  must  involve  some  recognition 
of  an  authority  in  the  unorganized,  spontaneously 
acting  "people"  against  which  no  act  of  any  body  of 
representatives  can  be  valid.  This  idea  preserves  the 
conception  of  democratic  government  as  contrasted 
with  the  more  modern  idea  of  the  republic. 

Two  other  features  of  modern  political  theory  may 
plausibly  be  adduced  as  evidence  of  progress  in  the 
field.  These  are  first,  the  distinction  worked  out  be- 
tween state  and  society,  and  second,  the  development 
of  the  doctrine  of  sovereignty.  As  to  this  latter  it  is 
to  be  said  that  the  concept  of  sovereignty  is  impHcit 
in  every  controversy  over  the  confhcting  claims  of  two 
or  more  systems  of  authority.  It  was  at  the  bottom  of 
the  Hellenic  struggles  between  the  many  and  the  few, 
of  the  Roman  struggles  between  patricians  and  plebe- 
ians, senate  and  assemblies,  of  the  mediaeval  struggle 
between  secular  and  ecclesiastical  powers,  and  of  the 
modem  struggles  between  monarchs  and  estates  or 
parHaments.  The  mediaeval  and  modem  incidents 
produced  conceptions  and  definitions  of  sovereignty 
that  far  excel  in  clearness  and  precision  anything  ex- 
tant in  the  records  of  antiquity.  To  this  extent, 
therefore,  there  was  advance  in  political  speculation. 

As  to  the  distinction  between  state  and  society,  it 
is  undoubtedly  a  useful  contribution  of  recent  specula- 
tion to  political  science.     It  is  closely  related  to  the 


SOCIAL  SCIENCE  AND  POLITICS  415 

general  conditions  that  produce  at  first  sight  the  im- 
pression of  a  very  great  difference  between  ancient  and 
modern  thinking  on  social  subjects.  For  obviously 
political  theory  has  been  much  reduced  in  scope  by  the 
expansion,  classification  and  precise  delimitation  of  the 
various  kinds  of  human  knowledge.  Doctrine  that 
was  in  Aristotle  pohtical  has  since  his  time  been 
definitively  assigned  to  theology,  to  ethics,  to  juris- 
prudence, to  economics  and  to  sociology.  This  fact 
gives  no  basis  for  judgment  on  the  substance  of  the 
doctrine,  but  is  a  matter  of  names  only.  Every  one 
of  the  special  sciences  mentioned  goes  back  to  ancient 
philosophies  for  substantial  elements  of  its  dogma 
propounded  mider  the  name  and  in  the  categories  of 
politics.  The  field  of  this  early  speculation  was  in 
fact  what  we  think  of  to-day  as  social  science  in  general. 
That  the  name  given  to  the  ensemble  of  ideas  about 
social  man  was  "politics"  was  due  to  preoccupation 
of  the  Greeks  with  their  particular  social  unit,  the  city- 
state  or  "polls." 

The  polls  was  to  them  primarily  a  society  and 
only  subsidiarily  a  state.  It  was  ethical,  furnishing 
the  norm  of  right  and  duty.  It  was  juristic,  embodying 
in  its  institutions  the  foundations  of  law.  It  was 
economic,  determining  the  conditions  of  material  pros- 
perity. It  was  sociological,  revealing  the  priQciples 
that  produced  not  only  the  best  men,  but  also  the  best 
form  of  association  among  men.  It  finally  was  political, 
solving  the  problem  of  authority  and  liberty  —  of 
the  control  of  one  human  will  by  another. 

This  last  is  the  characteristic  that  has  remained 


416  POLITICAL  THEORIES 

through  all  the  transformations  of  the  ages  ultimate  and 
essential  in  theory  deemed  specifically  political.  What- 
ever institutions  and  relations  have  been  thought  of 
as  the  subject  matter  of  any  other  science,  those  con- 
cerned with  the  regulation  and  control  of  one  man  or 
group  of  men  in  associated  life  by  another  man  or 
group  of  men  have  been  undeviatingly  the  subject 
matter  of  politics.  And  the  fundamental  problem  of 
political  theory  has  been  constantly  to  determine  on 
what  principles  the  relation  of  authority  and  submission 
can  be  explained  and  justified.  A  review  of  the  solu- 
tions accepted  by  the  successive  generations  covered 
by  our  history  will  reveal  to  what  extent  there  has  been 
progress  in  this  phase  of  speculation. 

II 

Greek  thought  on  this  problem  in  the  fourth  and 
third  centuries  before  Christ  included  substantially 
all  the  solutions  ever  suggested.  Most  prevalent  in 
the  time  of  the  great  Socratics,  Plato  and  Aristotle, 
was  the  doctrine  that  for  enlightened  peoples  like  the 
Greeks  the  submission  of  man  to  the  authority  of  man 
was  irrational.  In  a  community  that  was  poHtical, 
that  is,  one  that  had  developed  the  poHs,  or  city-state, 
authority  was  in  the  polls  and  submission  was  to  the 
polis.  For  peoples  that  had  not  developed  this  political 
form  of  society  submission  to  the  dominion  of  man  — • 
slavery  —  expressed  the  rule  of  undeveloped  "nature," 
viz.  inequality  of  power  and  control  by  the  stronger. 
In  the  political  community  the  life  lived  by  the  indi- 
vidual might  appear  at  different  times  to  be  determined 


THE   POLIS  SUPREME  417 

by  the  oligarchy  or  by  the  common  people  (demos) 
or  by  the  tyrant ;  but  the  real  and  ultimate  authority 
voiced  by  each  of  these  was  that  of  the  polis  as  a 
society,  and  not  that  of  any  one  or  more  individuals 
in  it.  Likewise  when  the  regulation  took  the  form  of 
law,  whether  human  (nomos)  or  divine  (themis),  it 
was  the  decree  of  the  polis  either  through  the  custom 
of  the  community,  or  through  some  lawgiver  deputed 
by  it,  or  through  the  gods  that  were  identified  with  its 
life.  Nor  was  there  conceived  to  be  any  aspect  of  the 
citizen's  life  to  which  the  beneficent  regulating  author- 
ity of  the  polis  did  not  extend. 

Other  conceptions  of  authority  quite  antagonistic 
to  this  did  not  fail  of  agitation  by  the  acute  Hellenic 
intelligence.  The  Cynics  paved  the  way  for  Stoicism 
and  the  Cyrenaics  for  Epicureanism.  Both  these 
systems  disparaged  the  pretensions  of  the  polis  to 
original  and  absolute  authority.  Above  the  social 
organization  the  Stoics  set  the  cosmos  —  universal 
nature  and  her  law.  Before  any  social  organization, 
polis  or  other,  the  Epicureans  set,  as  its  maker  and 
controller,  the  individual  man.  Not,  however,  till 
Rome  became  by  conquest  the  master  of  the  civilized 
world  did  the  influence  of  these  ideas  contribute  to 
supplant  by  other  conceptions  the  long  regnant  dogma 
of  the  city-state. 

Rome's  additions  to  the  theory  of  authority  were 
made  primarily  through  the  concrete  practical  opera- 
tion of  her  constitution  and  her  law.  As  a  conquering 
power  she  was  to  her  victims  force  pure  and  simple, 
as  void  of  theoretical  basis  as  the  earthquake  or  the 
2a 


418  POLITICAL  THEORIES 

tornado.  As  an  administering  power  the  concepts  of 
her  pubHc  and  private  law  profoundly  affected  general 
poHtical  theoiy.  Her  histoiy  and  traditions  abounded 
in  suggestions  of  an  absolute  authority  lq  the  city-state, 
and  at  the  same  time  left  everywhere  the  impression  of 
restraints  upon  its  exercise.  At  the  centre  of  the  Roman 
system  was  the  concept  of  the  imperium,  which  was 
authority  unlimited  in  scope,  but  assigned  to  determin- 
ate officials,  conferred  by  the  community  in  a  prescribed 
manner,  and  subject  in  exercise  to  definite  limits  of 
space  and  time.  Their  ius  civile,  prescribing  the  rules 
of  life  for  Romans,  was  centred  about  a  formal  code, 
supplemented  by  custom  and  by  formally  enacted 
statutes  (lex).  Their  ius  gentium,  or  law  of  the  subject 
peoples,  took  eventually  the  form  of  a  code,  the  prae- 
torian edict.  Behind  both  these  sj^stems  of  law,  what- 
ever their  inomediate  source  and  limitations,  was 
always  conceived  to  lie  the  unlimited  authority  of  the 
Roman  commonwealth  {res  publico),  or,  more  con- 
cretely, the  Roman  people  {populus  Romanus). 

In  the  first  two  centuries  of  the  Principate  a  new 
conception  was  incorporated  into  political  theory  among 
the  Romans.  Their  jurists  took  over  from  Greek 
philosophy,  particularly  Stoicism,  the  idea  of  the  ius 
naturale,  according  to  which  authority  transcending  all 
of  human  origin  was  ascribed  to  nature.  The  develop- 
ment of  this  idea  tended  clearly  to  an  issue  between  the 
rule  of  universal  nature  and  that  of  the  Roman  im- 
perium  as  embodied  in  the  Imperator-Princeps.  The 
hard-headed  practicality  of  the  Romans  availed  to 
prevent  concrete  manifestations  of  this  issue.     Nature 


CHRISTIANITY  AND  AUTHORITY  419 

was  too  ill-defined  an  entity  to  be  substituted  for  the 
commonwealth  as  incarnate  in  the  Emperor.  His 
will  and  power  remained  supreme  in  the  practice  of 
government,  but  in  theory  the  authority  of  nature 
gained  general  recognition  as  superior  to  the  authority 
of  Rome.  Indeed,  the  antithesis  was  declared  between 
nature  and  all  human  authority  whatever ;  for  it  was 
proclaimed  by  the  Roman  jurists  themselves  that  under 
nature's  law  all  men  were  free  and  equal. 

Then  came  Christianity  upon  the  scene.  As  this  faith 
rose  to  influence  and  power  its  teachings  transformed 
political  as  well  as  other  philosophy.  God  and  his 
scheme  of  creation  gradually  became  recognized  as  the 
first  cause  of  m^an  and  all  human  affairs.  The  divine 
will  fixed  the  character  and  operation  of  social  institu- 
tions. If  the  Roman  People,  now  coterminous  with 
the  population  of  the  civilized  world,  still  conferred 
the  imperium  on  the  Emperor,  it  was  by  God's  will  that 
Emperor,  imperium  and  Roman  People  itself  existed. 
If  nature  governed  human  relations,  God  ruled  nature 
—  nature  was  God.  Every  social  or  political  hier- 
archy or  authority  was  but  an  incident  in  the  working 
out  of  the  divine  scheme  of  creation.  That  there  were 
rulers  and  ruled  in  human  society  was  by  God's 
command;  not  elsewhere  could  justification  be  found 
for  the  fact  that  a  particular  man  was  ruler  and  another 
was  ruled.  Nor  was  the  authority  of  any  law  to  be 
explained  in  any  other  way.  Whatever  the  source  and 
whatever  the  force  of  enacted  human  law,  or  customary 
law,  or  the  law  of  nature  itself,  —  all  must  rest  for 
their  justification  ultimately  upon  the  law  of  God. 


420  POLITICAL   THEORIES 

The  codification  of  this  supreme  law,  so  far  as  it  was 
revealed  to  man,  was  in  the  Holy  Scriptures  and  the 
interpreter  of  it  was  the  church. 

Such  was  the  theory  as  to  the  basis  of  political 
authority  during  a  thousand  years  of  West-European 
life.  Two  distinct  systems  of  regulation  for  mankind 
were  recognized,  the  temporal  and  the  spiritual,  but 
the  distinction  between  them,  like  the  institutions  em- 
bodied in  them,  resulted  from  the  command  of  God. 
In  both  systems  the  subjection  of  man  to  man  was 
characteristic,  but  the  ruler's  rule  was  valid  only  so  far 
as  it  could  be  traced  to  the  will  of  God.  In  both  sys- 
tems the  subjection  of  the  individual  to  the  authority 
of  a  social  aggregate,  the  church  and  the  state  respec- 
tively, was  fundamental;  but  church  and  state,  like 
Pope  and  Emperor  and  kings,  had  their  authority  only 
from  God.  There  could  be  enquiry  and  debate  as  to 
demarcation  of  the  spheres  of  the  two  systems  and  as  to 
the  details  of  the  operation  of  each ;  but  there  could  be 
no  questioning  by  God's  creatures  as  to  His  purpose 
in  establishing  the  systems,  or  as  to  the  righteousness 
of  the  principle  expressed  in  them  that  authority  had 
its  origin  in  the  will  of  a  Supreme  Being.  All  mediaeval 
culture  manifests  the  influence  of  this  idea,  —  finds 
the  warrant  for  government  in  the  right  of  the  ruler 
rather  than  in  any  consent  of  the  ruled. 

In  the  fourteenth  century  a  movement  away  from 
this  doctrine  makes  its  appearance.  It  starts  with 
questionings  as  to  the  interpretation  of  the  law  of  God 
and  develops  through  questionings  as  to  the  interpreter. 
In  the  fifteenth  century  nature  and  its  law  begin  to 


NATURE   SUPPLANTS   GOD  421 

assume  again  the  importance  that  had  been  lost  to  them 
with  the  development  of  Christianity  and  its  omnipotent 
God.  Nature  is  learned  to  have  declared,  through  the 
Roman  jurist,  that  all  men  are  free  and  equal.  Nature 
must  speak  the  will  of  God;  hence  it  must  be  God's 
way  that  authority,  under  Him,  shall  be  not  in  any 
man  alleged  to  be  superior,  but  in  the  people.  This 
was  the  doctrine  preached  by  Marsiglio  in  the  four- 
teenth century,  by  Cusanus  in  the  fifteenth  and  by  a 
great  throng  of  thinkers,  Protestant  and  Catholic,  in 
the  sixteenth. 

During  the  next  two  centuries  the  idea  of  God  as  the 
direct  and  immediate  source  of  political  sovereignty 
fell  steadily  away  into  the  background.  In  the  multi- 
tude of  creeds  that  disintegrated  Christianity  the  Scrip- 
tures ceased  to  afford  any  certain  guide  to  the  knowledge 
of  the  divine  will.  Nature,  however,  interpreted  by 
reason,  still  persisted  as  a  power  operating  uniformly 
throughout  mankind,  and  indeed  throughout  the  uni- 
verse. In  nature,  therefore,  and  its  law  the  political 
theory  of  the  eighteenth  century,  like  that  of  the  third 
century,  but  more  unreservedly,  placed  the  foundation 
of  social  government  and  authority. 

In  this  modern  conception  of  the  law  of  nature  partic- 
ular stress  was  from  the  outset  laid  on  the  limitations 
to  which  the  control  of  man  by  man  was  subject. 
Nature's  voice  in  the  matter  of  liberty  became  of 
absorbing  interest  —  of  more  concern  than  her  voice 
as  to  authority.  Individualism  came  into  the  fore- 
ground. The  same  nature  that  ascribed  supreme 
power  to  the  people  as  an  aggregate  was  found  to  have 


422  POLITICAL  THEORIES 

set  limits  to  that  power  in  reference  to  the  people  as 
individuals.  A  sphere  was  conceived  wherein  no  au- 
thority external  to  the  individual  could  intrude.  This 
theory  of  natural  rights  was  by  some  thinkers  expanded 
to  its  limit ;  the  sphere  free  from  intrusion  was  made 
to  include  the  whole  field  of  action,  and  authority  over 
rational  man  was  denied  as  irrational.  Anarchy  was 
thus  proclaimed  as  nature's  law. 

Political  theory  during  the  nineteenth  century  was 
devoted  largely  to  the  task  of  adjusting  the  conceptions 
of  authority  and  liberty  so  as  to  escape  the  dilemma  of 
the  anarchists.  Nature  was  dropped  out  of  considera- 
tion as  God  had  been  before,  and  other  concepts  were 
brought  forward  as  fetters  for  the  individual  will. 
Reason,  righteousness,  history,  especially  as  embodied 
in  constitutional  formulas,  were  variously  adduced  as 
the  source  of  authority  and  the  limit  of  liberty.  The 
nation,  a  political  organism  independent  of  control 
by  the  individual,  was  set  up  as  the  source  of  control 
over  him.  Finally  society,  as  an  entity  comprehending 
the  whole  range  of  human  relationships,  was  declared 
to  be  the  holder  and  distributor  of  authority  over  all. 

These  dogmas,  with  endless  varieties  of  shading  and 
detail,  were  in  conflict  in  the  philosophy  of  the  nine- 
teenth century,  and  the  conflict  is  stiU  in  progress. 
Greek  history  shows  that  they  were  in  like  conflict, 
with  different  degrees  of  relative  strength,  in  the  fourth 
century  B.C.  Anarchistic  individualism  was  preached 
by  Sophists  and  Cynics ;  constitutionaHsm  by  Aristotle 
and  the  other  conservative  upholders  of  the  nomoi; 
nationalism  is  but  the  theory  of  the  city-state  writ 


THE   CIRCLE   COMPLETE  423 

large ;  societarianism  has  never  been  more  completely 
formulated  than  by  Plato.  In  twenty-three  centuries 
the  movement  of  thought  has  but  swung  full  circle. 
Such  is  the  general  lesson  of  the  history  of  poHtical 
theories.  It  is  not  different  from  the  lesson  of  history 
in  respect  to  all  the  other  varieties  of  theory  by  which 
men  have  sought  to  solve  the  basic  problems  of  their 
earthly  existence. 


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See  Ecrivains  politiques. 
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426  POLITICAL  THEORIES 

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Dahlmann,  Friedrich  Christoph. 

Die  Politik  auf  den  Grund  der  gegebenen  Zustande 
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De  Lolme,  J.  L. 

The  Constitution  of  England.     New  edition,  with  life 
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Ferguson,  Adam. 

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Principles   of   Moral   and    Political   Science.    2   vols. 
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Fichte,  Johann  Gottlieb. 

Sammtliche  Werke.     Herausgegeben  von  J.  H.  Fichte. 
8  Bande.     Berhn,  1845.     Esp.  Bde  3,  4,  7. 
Filangieri,  Gaetano. 

La  Scienza  della  Legislazione.     6  vols.     Milano,  1822. 
Fourier,  Charles. 

(Euvres  completes.     6  tomes.     Paris,  1841^6. 
Godwin,  William. 

Enquiry  concerning  Political  Justice  and  its  influence  on 
Morals  and  Happiness.     2  vols.  3d  ed.  London,  1798. 
Guizot,  Franfois  P. 

The  History  of  Representative  Government  in  Europe. 
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Haller,  Carl  Ludwig  von. 

Restauration  der  Staats-Wissenschaft.     2te  vermehrte 
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Hegel,  G.  W.  F. 

Werke.  Herausgegeben  von  Dr.  Eduard  Gans.  2te 
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London,  1896. 
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Helvetius,  Claud  Arian. 

De  I'Esprit,  or  Essay  on  the  Mind  and  its  Several 
Faculties.  Translated  from  the  French.  London, 
1810. 


428  POLITICAL   THEORIES 

A  Treatise  on  Man.  Translated  from  the  French,  with 
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Holbach,  Baron  d'. 

Systeme  Social.     2  tomes.     Paris,  1822. 
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Ideen  zu  einem  Versuch  die   Granzen  der  Wirksam- 
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Joseph  Coulthard.     London,  1854. 
Kant,  Immanuel. 

Metaphysische    Anfangsgriinde    der    Rechtslehre.     2te 

Auflage.     Konigsberg,  1798. 
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Edinburgh,  1887. 
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1867. 
Project  for  a  Perpetual  Peace.    Translated.     London, 
1796. 
Mably,  G.  B.  de. 

(Euvres  completes.     12  vols.     Lyon,  1796. 
Maistre,  Comte  Joseph  de. 

(Euvres.      Publiees    par    M.    l'Abb6    Migne.      Paris, 
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Marx,  Karl,  and  Engels,  Frederick. 

Manifesto  of  the  Communist  Party.     Authorized  Eng- 
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Mazzini,  Joseph. 

Essays,  translated  by  Thomas  Okey,  edited  by  Bolton 
King.     London,  1894. 
Mill,  James. 

Essays  on  Government,  Jurisprudence,  Liberty  of  the 
Press,  and  Law  of  Nations.     Written  for  the  Ency- 
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Mill,  John  Stuart. 

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York,  1875. 


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1841. 
Owen,  Robert. 

The  Book  of  the  New  Moral  World.     London,  1842. 
Paine,  Thomas. 

Writings   of.    Collected   and   Edited    by  Moncure   D. 
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Physiocrates. 

Quesnay,  Dupont  de  Nemours,  Mercier  de  la  Riviere, 
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Proudhon,  Pierre  Joseph. 

(Euvres  completes.     26  tomes.    Bruxelles,  1868-76. 
What  is  Property?     Translated  by  Benj,  R.  Tucker. 
Two  vols,  in  one.     London,  n.  d. 
Rousseau,  Jean  Jacques. 

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Rechts-  und  Staatslehre"  auf  der  Grundlage  christlicher 

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Histoire  des  idees  morales  et  politiques  en  France  au 
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Fourier,  Charles. 

Theory  of  Social  Organization.  [Translated,  with  In- 
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York,  1876. 
Selections  from  the  Works  of.  With  an  Introduction 
by  Charles  Gide.  Translated  by  Juha  Frankhn. 
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Franck,  Ad. 

Reformateurs  et  Publicistes  de  I'Europe.     Dix-huiti^me 
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See  Buchez ;  also  Legg. 
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Helie,  Faustin-Adolphe. 

Les  Constitutions  de  la  France.     2  tomes.     Paris,  1875. 
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Select  Documents  illustrative  of  the  History  of  the 
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Remarks  on  the  Use  and  Abuse  of  some  Political  Terms. 
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2f 


434  POLITICAL  THEORIES 

Liepmann,  B.  M. 

Die    Rechtsphilosophie    de    Jean    Jacques   Rousseau. 
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Lingley,  C.  R. 

The  Transition  in  Virginia  from  Colony  to  Common- 
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The  Eve  of  the  French  Revolution.     Boston,  1892. 
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Early  History  of  Institutions.     London,  1875. 
Menger,  Anton. 

The  Right  to  the  Whole  Produce  of  Labor.     Translated 
by  M.  E.  Tanner.     With  an  Introduction  and  Bib- 
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Merriam,  C.  E. 

History  of  the  Theory  of  Sovereignty  since  Rousseau. 

New  York,  1900. 
A  History  of  American  Political  Theories.     New  York. 
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Michel,  Henri. 

LTdee    de    I'Etat.     Essai    critique    sur    I'histoire    des 
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Reden  und  Redner  des  ersten  deutschen  Parlaments. 
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constitution,  all  taken  from  the  stenographic  report 
of  the  sessions.] 
Motley,  John. 

Rousseau.     2  vols.     London,  1888. 
Miscellanies.     3  vols.     London,  1892. 
Morris,  George  S. 

Hegel's   Philosophy    of    the    State    and    of    History. 
Chicago,  1887. 
Mulford,  E. 

The    Nation:     the    Foundations    of   Civil    Order   and 
PoUtical  Life  in  the  United  States.     New  York,  1871. 


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Miiller,  Wilhelm. 

Political    History    of    Recent    Times.     Translated    by 
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Albert  Lefevre.     New  York,  1902. 
Pfizer,  P.  A. 

Ueber    die    Entwicklung    des    offentlichen    Rechts    in 
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Geschichte    der   Staatsrechtswissenschaft.     Freiburg  i. 

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Ritchie,  David  G. 

Darwin  and  Hegel  with  other  philosophical  studies. 
London,  1893. 
Robinson,  J.  H.,  and  Beard,  C.  A. 

Readings    in    Modern    European    History.     2    vols. 
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Nationality  in  Modern  History.     New  York,  1916. 
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America  and  France :  the  Influence  of  the  United  States 
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The  Evolution  of  Modern  Liberty.     New  York,  1904. 
Simkhovitch,  V.  G. 

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Socialism  and  the  Social  Movement.  Translated  from 
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436  POLITICAL   THEORIES 

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Sparge,  John. 

Karl  Marx :   his  Life  and  Work.     New  York,  1910. 
Stephen,  Sir  LesUe. 

History  of  English  Thought  in  the  Eighteenth  Century. 

2  vols.     3d  ed.     London,  1902. 
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See  Davis. 
Veneday,  Jakob. 

Macchiavel,    Montesquieu,    Rousseau.     2    Bde   in    1. 
Berlin,  1850. 
Zoepfl,  Heinrich  Matthias. 

Grundsatze  des  gemeinen  deutschen  Staatsrechts.     Ers- 
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Zweig,  Egon. 

Die  Lehre  vom  Pouvoir  Constituant.     Tubingen,  1909. 


INDEX 


Adams,  John :  in  France,  85 ;  and 
Massachusetts  Constitution,  91 ; 
on  American  system,  99. 

America :  influence  of,  on  French 
thought,  60;  Maistre  on  institu- 
tions of,  194. 

Americans:  opinion  on  the  national 
state  in  the  sixties,  330. 

Anarchism :  beginnings  of,  362  et 
seq.;  Proudhon's  doctrine  of, 
368;  compared  with  socialism, 
404;  product  of  individualism, 
422. 

Aristocracy :  Rousseau  on,  31 ; 
Burke  on,  182 ;    see  also  Nobility. 

Aristotle  :  relation  to  Rousseau,  40  ■ 
and  J.  S.  Mill,  240-1 ;  and  Tocque- 
ville,  270;  compared  with  Comte, 
390. 

Amdt :  and  nationalism,  298 ;  on 
German  language  unity,  319. 

Articles  of  Confederation  :  on  people, 
97;    a  failure,  117. 

Assembly,  constituent :  Si6y6s'  doc- 
trine of,  103 ;  relation  to  popular 
sovereignty,  104 ;  Condorcet  on 
theory  of,  107. 

Assembly,  legislative :  theory  of 
relation  of,  to  monarch  and  con- 
stitution, 254-5 ;  has  subordinate 
function  in  law-making,  257. 

Assembly,  National :    in  1789,  88. 

Austin,  John :  works  and  doctrines 
of,  224  et  seq.;  J.  S.  Mill  compared 
with,  240;  compared  with  Ger- 
man idealists,  244 ;  fate  of  his 
doctrine  of  sovereignty,  246 ;  effort 
to  define  terms,  320. 

Authority :  review  of  theories  as  to 
justification  of,  416  et  seq. 

Babceuf :     insurrection       of,       340. 

Balkan  states :  problem  of  national- 
ity in,  337. 

Beccaria :  practical  work  of,  48 ; 
doctrines  of,  71. 

Belgium  :  independence  of,  249 ;  and 
nationalism  of  1830,  296. 

Bentham,  Jeremy :  and  the  English 
Radicals,  209 ;  growth  and  ^decline 
of  his  system,  210 ;  and  his  group, 


211 ;  his  doctrines,  212  et  seq. ;  Aus- 
tin's relation  to,  225  et  seq.;  com- 
pared with  German  idealists,  244 ; 
effort  at  definition  of  terms,  320. 

Bill  of  Rights:  see  Declaration  of 
Rights. 

Biology:  relation  to  sociology  in 
Comte,  394. 

Bismarck :  and  nationalism,  298. 

Blackstone :  political  theories  of, 
73-6 ;  relation  to  Locke  and 
Montesquieu,  73,  74 ;  Bentham's 
criticism  of,  214 ;  confused  with 
Austin  on  sovereignty,  228-9; 
and  J.  S.  Mill  on  sovereignty,  240. 

Blanc,  Louis :  socialism  of,  344 ; 
and  the  right  to  labor,  371. 

Bluntschli :  doctrines  of,  307  et  seq.; 
his  theory  of  nationahty,  325 ; 
on  relation  of  state  to  nationality, 
328,  331. 

Bodin :  on  sovereignty,  21 ;  and 
Tocqueville,  270 ;  on  influence  of 
geography,  316 ;  on  relation  of 
state  to  nationality,  327 ;  compared 
with  Comte,  390. 

Bohemia :  nationalism  of  1848  in, 
297. 

Bonald,  Marquis  de :  works  and 
doctrines  of,  184  et  seq. 

Boundaries,  natural :  see  Geography. 

Bourgeoisie :  at  strife  with  prole- 
tariat, 372. 

British  constitution  :  Blackstone  on, 
74 ;  De  Lolme  on,  76 ;  Paine  on, 
114;  Burke  on,  182;  Maistre  on, 
194. 

Bundesstaat :    see  Union-state. 

Burke,  Edmund :  criticised  by  Paine, 
114;  his  influence,  171;  works 
and  doctrines  of,  176  et  seq.;  on 
geography  and  country,  317. 

Cahiers :  doctrines  embodied  in,  100. 
Calhoun,    J.    C. :     on    sovereignty, 

284,     287 ;    on    state-sovereignty, 

333-4. 
Capitalists :      beginnings     as     social 

class,  341 ;    Utopian  socialists  on, 

349 ;     in    Fourier's    system,    353 ; 

have  no   right  to   product,   365 ; 


437 


438 


INDEX 


Marx  on  despotism  of,  373 ;  Stein 
on  conflict  of,  with  wage-earners, 
382. 

Caste  :  means  triumph  of  society  over 
state,  379. 

Catherine  II :  enHghtened  despot, 
47 ;    and  la  Riviere,  48. 

Cavour :   and  nationahsm,  298. 

Charles  X :    deposition  of,  248. 

Charte :  granted  to  France,  173 ; 
theory  of  monarch's  position  in, 
253 ;     glorified    by    Doctrinaires, 

!    265. 

Chartists:   relation  to  Bentham,  210. 

Check  and  balance :  in  British  con- 
stitution, 76,  183 ;  in  American 
constitutions,  92,  96,  109 ;  Guizot 
on,  267;  new  element  of ,  in  U.  S., 
273 ;  function  of  American  ju- 
diciary in,  275. 

Christianity :  ideas  in,  as  to  the 
source  of  authority,  419  et  seq. 

Classes,  social :  in  Fourier's  system, 
353 ;  Saint-Simon  on,  355-6 ; 
in  project  of  Saint-Simonians, 
360-1 ;  perpetual  war  of,  372 ; 
Stein  on,  377,  379 ;  Gumplowicz  on, 
407. 

Codification :  Bentham  on,  213, 
223. 

Commerce :  Fichte's  theory  as  to, 
143. 

Common  law:    Bentham  on,  212. 

Communism :  see  Socialism. 

Communist  Manifesto :  origin  of, 
345. 

Competition :  James  Mill  on,  342 ; 
Utopian  socialists  on,  349. 

Composite  state  :  Austin  on,  312  ; 
see  also  Union-state. 

Comte,  Auguste :  influence  on  J.  S. 
Mill,  236-7  ;  gives  name  and  sphere 
to  sociology,  346;  works  and 
doctrines  of,  387,  et  seq. 

Condorcet:  on  American  system, 
99 ;  Works  and  doctrines  of,  106 
et  seq.;  in  French  Assemblies,  116; 
with  the  Girondists,  121 ;  influence 
on  Comte,  390. 

Congress  of  Vienna :  influence  of, 
169;  principles  sustained  by, 
172  ;    nationality  in,  294. 

Constant,  Benjamin  :  doctrines  of, 
259  et  seq. 

Constitution  :  relation  of  Rousseau's 
conception  of  law  to,  41,  42 ; 
not  product  of  human  purpose,  66 ; 
made  by  nation,   103;    Condorcet 


on  the  making  of,  106  et  seq. ;  Kant 
on,  132  ;  Fichte  on,  146  ;  not  to  be 
shaped  by  govermnent,  147 ;  sub- 
sidiary to  society,  152 ;  never 
created  by  men,  160;  granted  to 
France  by  Louis  XVIII,  173; 
required  for  German  states,  173 ; 
species  of,  in  Europe  after  1815, 
174  ;  never  can  be  written,  191-2  ; 
presumes  a  nation,  195  ;  made  by 
people  in  union-state,  286-7 ;  re- 
lation to  idea  of  tiation,  288. 

Constitution,  French :  under  ancien 
regime,  90;  Declaration  of  Rights 
in,  117  et  seq. 

Constitution,  written  :  Burke  on,  178 ; 
prevalence  of,  in  nineteenth  cen- 
tury, 251 ;  Tocqueville's  views 
of  American,  276,  278 ;  Comte  on, 
388. 

Constitutionalism :  importance  in 
nineteenth  century,  250. 

Continental  Congress:    84. 

Contract,  governmental :  Holbach 
on,  55 ;  Ferguson  on,  69 ;  Burke 
on,  178. 

Contract,  social :  Rousseau's  for- 
mula of,  18;  solves  problems  of 
sovereignty,  22 ;  Holbach  on,  54  ; 
ideas  of  Americans  on,  93  ;  Umited 
to  one  generation,  110;  Kant  on, 
132 ;  Fichte's  analysis  of,  139- 
141 ;  German  idealists  on,  167 ; 
Burke  on,  178 ;  assailed  by  Haller, 
196 ;  Bentham  on,  215 ;  Austin 
on,  234 ;  Comte  on,  388 ;  Spencer 
on,  399. 

Convention,  constitutional :  Ameri- 
can Revolutionists  on,  98 ;  see  also 
Assembly,  constituent,  and  As- 
sembly, national. 

Convention,  National  (French) :  89, 
121. 

Cooperation :  preached  and  prac- 
tised by  Owen,  350 ;  Saint  Simoni- 
ans  on,  361. 

Corsica :  Rousseau's  suggestions  for, 
7. 

Crimean  War :  250. 

Dahlmann :  and  nationalism,  298 ; 
on  people  and  state,  305. 

Darwin :  influence  on  political 
theory,  335 ;  influence  on  soci- 
ology, 347 ;  relation  to  Marxian 
doctrine,  376. 

Decentralization  :  in  America,  274 ; 
in  industrial  type  of  society,  401. 


INDEX 


439 


Declaration  of  Independence :  doc- 
trines of,  92 ;  on  people,  97 ; 
nationalistic  influence  of,  292. 

Declaration  of  Rights :  first  French, 
89 ;  in  French  constitution  of 
1791,  118-120;  of  1793,  122;  of 
1795,  123 ;  Burke  on,  178 ;  Bon- 
ald  on,  188;    Bentham  on,  219. 

De  Lolme :  on  British  constitution, 
76  ;   on  hberty,  77. 

Democracy :  Rousseau  on,  31 ;  all 
government  originates  in,  33 ; 
Tocqueville  on  success  of,  276 ; 
see  also  Forms  of  Government. 

Democracy,  social :  defined  by  Stein, 
384. 

Diderot :  Rousseau's  relations  with, 
4. 

Doctrinaires :    glorified   Charte,   265. 

Duty :  above  will,  180 ;  in  French 
constitution  of  1795,  124 ;  Ben- 
tham on,  220  et  seq. 

Dynamics,  social:   in  Comte,  391. 

Education :  right  to,  in  French  con- 
stitution of  1793,  122;  chief 
function  of  state,  146  ;  no  purpose 
of  state,  151 ;  importance  in  class 
conflict,  382. 

Enfantin :  355. 

Engels,  Friedrich :  and  the  Com- 
munist Manifesto,  345,  372. 

England :   see  Great  Britain. 

Enlightened  despotism :      repre- 

sentatives and  practice  of,  47 ; 
under  Napoleon,  90. 

Ephorate :    Fichte's  ideas  on,  146. 

Epicureans :  ideas  as  to  source  of 
authority,  417. 

Equality :  in  Rousseau's  pact,  18 ; 
Mably  on,  52  ;  ideas  of  the  Ameri- 
cans on,  94  ;  Bonald  on,  188  ;  not 
in  nature,  197  ;  incompatible  with 
property,  364  ;  Proudhon  on,  365  ; 
Stein  on,  383. 

Estate,  Third:  in  1789,  88;  iden- 
tified with  bourgeoisie,  372. 

Estates  General :  in  1789,  88 ;  in- 
fluence of  Siey^s  on,  101. 

Evolution :  Spencer's  development 
of,  393^. 

Federalist,  The :  99 ;  nationalistic 
influence  of,  292. 

Ferguson :  social-historical  method 
of,  66  ;  on  state  of  nature,  67  ;  on 
origin  of  society  and  government, 
68;    inconsistencies  of,  69-70. 


Fichte :  relation  to  Rousseau,  40 ; 
works  and  doctrines  of,  137  et  seq. ; 
criticised  by  Hegel,  155 ;  com- 
pared with  utilitarians,  244 ;  on 
the  nation,  312-5;  compared  with 
Savigny,  315-6 ;  on  geography 
and  nation,  318. 

Filangieri :  practical  work  of,  48 ; 
doctrines  of,  78-80;  relation  to 
Montesquieu,  78 ;  to  other  prede- 
cessors, 79 ;   on  America,  80 

Forms  of  government :  Rousseau  on, 
31 ;  all  despotic,  53 ;  Holbach 
on,  55-6;  Physiocrats  on,  61; 
Ferguson  on,  68;  Paine  on,  113; 
Kant  on,  133  ;  Fichte  on,  146  ;  J. 
S.  Mill  on,  239  et  seq.;  Schleier- 
macher  on,  303 ;  Proudhon  on, 
367 ;  review  of  theories  concern- 
ing, 411. 

Forms  of  state:  Rousseau  on,  18, 
22;  Kant  on,  133;  Haller  on, 
199  ;  review  of  theories  concerning, 
411. 

Fourier :  rise  of  his  doctrines,  343 ; 
his  social  system,  352-4. 

France :  social  conditions  in  eigh- 
teenth century,  3  ;  effect  of  Seven 
Years'  War  on,  45 ;  and  American 
Revolution,  84 ;  constitution  of 
compared  with  American,  109 
policy  under  Napoleon,  128 
revolution  of  1830  in,  248 ;  revo- 
lution of  1848  in,  249 ;  practice  of 
plebiscite  in,  336 ;  early  socialism 
in,  343. 

Frankfort  Assembly :  constitution 
framed  by,  280;  nationalism  in, 
297. 

Franklin,  Benjamin :  in  France,  85 ; 
and  American  constitutions,  99. 

Frederick  the  Great :  consolidates 
Prussian  Monarchy,  45 ;  an  en- 
lightened despot,  47 ;  relations 
with  Voltaire,  48. 

Freedom  :  in  Hegelian  world  history, 
165  ;    see  also  Liberty. 

Freedom  of  assembling :  a  natural 
right,  119. 

Freedom  of  expression :  in  French 
constitution,  119;  J.  S.  Mill  on, 
238. 

Freedom  of  movement :  in  Penn- 
sylvania, 95 ;  in  French  constitu- 
tion, 119. 

Freedom  of  the  press :  demanded  by 
Holbach  et  al.,  57 ;  ideas  of  the 
Americans  on,  94. 


440 


INDEX 


Freedom  of  religion :  demanded  by 
Holbach  et  al.,  57 ;  ideas  of 
Americans  on,  94 ;  in  French 
constitution,  119. 

Geneva :   Rousseau's  pride  in,  6. 

Geography :  relation  to  state,  144 ; 
German  idealists  on,  169 ;  as 
basis  of  nation,  316  et  seq. 

George  III :  opposes  Parliament  and 
Americans,  49-50,  and  the 
Americans,  84. 

German  Confederation  (Bund) :  pro- 
vision for  constitutions  m,  173. 

Germany :  insurrections  of  1848  in, 
249 ;  Bismarckian  wars  in,  250 ; 
constitutional  aspect  of  move- 
ment for  unity  in,  281 ;  at  Congress 
of  Vienna,  293 ;  nationalism  of 
1848  in,  297. 

Girondists:   121. 

Godwin,  William:  English  radical, 
208  ;    doctrines  of,  362^. 

Gournay :  physiocratic  doctrine  of, 
62. 

Government :  distinguished  from 
state  or  sovereign  (Rousseau) ,  29 ; 
institution  and  extinction  of,  32 
et  seq.;  always  democratic  in 
origin,  33  ;  cannot  make  law,  33  ; 
encroaches  on  sovereign,  36 ;  in- 
fluences character  of  people,  53 ; 
ideas  of  Americans  on,  95,  96 ; 
excluded  from  constitution  mak- 
ing, 107 ;  distinct  from  state, 
146 ;  Fichte's  ideas  on,  146—7 ; 
Burke  on,  178 ;  Haller  on  authority 
in,  198 ;  distinction  between  free 
and  despotic,  219 ;  Bentham  and 
Austin  on  sovereignty  in  federal, 
230  et  seq.;  J.  S.  Mill  on,  236; 
Guizot  on  representative,  265  et 
seq.;  Saint-Simon's  project  for, 
357 ;  doomed  to  disappear,  363, 
400-1 ;  property  chief  cause  of, 
367 ;  shaped  by  economic  con- 
ditions, 372 ;  Comte's  method  in 
science  of,  389 ;  force  the  basis  of, 
392 ;  implied  in  society,  392 ; 
Spencer's  conception  of,  397 ;  rela- 
tive importance  in  recent  theory, 
402. 

Gray,  John  :   on  rent  and  profits,  343. 

Great  Britain :  effect  of  Seven  Years' 
War  on,  45 ;  policy  of  George  III 
in,  49 ;  her  quarrel  with  the 
Americans,  82 ;  her  opposition  to 
the      French      Revolution,      171 ; 


radical  reform  movement  in,  207 
et  seq.;  troubled  by  nationalism, 
296 ;  industrial  revolution  in, 
341 ;    early  socialism  in,  342. 

Greeks :  revolt  of,  248 ;  race 
nationalism  in,  295. 

Greeks  (ancient) :  ideas  as  to  basis  of 
authority,  416  et  seq. 

Grotius :  disliked  by  Rousseau,  5; 
compared  with  Rousseau  on  state 
of  nature,  15. 

Guizot:  compared  with  Mill  on 
sovereignty,  240 ;  doctrines  of, 
263  et  seq.;  opposition  to  de- 
mocracy, 271. 

Gumplowicz,  Ludwig :  sociology  of, 
407. 

Haller,  Ludwig  von :  works  and 
doctrines  of,  195  et  seq.;  Stein's 
suggestion  of,  377. 

Happiness :  test  of  excellence  in 
government,  53  ;  end  of  legislation, 
71 ;   end  of  government,  233. 

Harrington,  James :  and  the  Ameri- 
can Revolution,  91. 

Hegel :     relation    to    Rousseau,    40 
works  and  doctrines  of,  154  et  seq. 
compared    with    utilitarians,    244 
influence  on  idea  of  state,  300 ;   on 
geography  and  nation,  318-9. 

Helvetius :  social  and  political  ideas 
of,  53. 

Historical  method :  influence  on 
utilitarianism,  243 ;  Comte  on, 
393. 

Hobbes :  disliked  by  Rousseau,  5 ; 
compared  with  Rousseau  on  state 
of  nature,  8,  11,  12,  15;  influence 
on  Rousseau's  social  pact,  18,  20; 
on  sovereignty,  21 ;  combated 
by  Ferguson,  70 ;  and  Bentham, 
217 ;  on  relation  of  state  to 
nationality,  327. 

Hodgskin,  Thomas :  on  rent  and 
profits,  343. 

HohenzoUerns :  idea  of  monarchy 
under,  134 ;  influence  on  Hum- 
boldt, 154 ;  effect  of,  on  Hegelians, 
160;  after  insurrection  of  1848, 
250. 

Holbach :  social  and  political  ideas 
of,  54  et  seq. 

Holy  Alliance  :  origin  and  principles 
of,  174 ;   Comte  on,  388. 

Humboldt :  doctrines  of,  148  et  seq. ; 
compared  with  J.  S.  Mill,  238. 

Hume :  Ferguson's  relation  to,  65. 


INDEX 


441 


Hungary:  insurrection  of  1848  in, 
249 ;   nationalism  of  1848  in,  297. 

Idealists,  German  :  general  character 
and  influence  of,  166  et  seq. ;  com- 
pared with  utilitarians,  244. 

Individualism :  in  Kant,  136 ;  in 
Humboldt,  153 ;  importance  of 
Benthamite,  209-210;  in  J.  S. 
Mill,  238 ;  Saint-Simonians  on, 
361 ;  developed  into  anarchism, 
362 ;  of  Spencer,  398 ;  on  source 
of  authority,  421-2. 

Industrial  revolution :  in  England, 
208. 

Insurrection  :   a  natural  right,  122. 

International,  The :  relation  of  Marx 
to,  376. 

Ireland  :   nationalism  of  1848  in,  296. 

Italy :  insurrections  in,  248-9 ;  war 
of  1859  in,  250 ;  at  Congress  of 
Vienna,  293 ;  nationalism  of  1848 
in,  297. 

Jacobins:  121. 

Jefferson,   Thomas :    in   France,   85 ; 

and  Declaration  of  Independence, 

91 ;  on  duration  of  social  pact,  110. 
Joseph    II,    Emperor:     enlightened 

despot,  47. 
Judiciary:     part  of  executive,    115; 

power    of,     over     constitution     in 

America,  275. 
Jurisprudence :     defined    by   Austin, 

225-6. 

Kant :     relation    to    Rousseau,    40 ; 

works  and  doctrines  of,  130  et  seq. ; 

criticised  by  Hegel,  155. 
Kossuth :    and  nationalism,  298. 

Lamartine  :    and  nationalism,  298. 

Lamennais  :  Catholic  democracy  and 
socialism  of,  269. 

Language:  as  basis  of  nation,  312 
et  seq. 

Law :  Rousseau  on,  27 ;  relation  to 
constitution,  41 ;  not  made  but 
discovered  by  men,  59 ;  Paine's 
ideas  on,  116;  defined,  118;  Kant 
on,  132  ;  Hegel's  doctrine  of,  156  ; 
Bonald  on,  188;  Haller  on,  204; 
Bentham  on  English,  212 ;  de- 
fined by  Bentham,  218;  defined 
and  classified  by  Austin,  225 ; 
relation  of  king  and  legislature  to 
making  of,  257;  Proudhon  on, 
369. 


Lawgiver:  Rousseau  on,  28;  Mably 
on,  52;  Filangieri  on,  80;  Maistre 
on, 193. 

Levellers :  and  the  American  Revo- 
lution, 91 ;  and  the  French 
Revolution,  177. 

Lewis,  G.  C. :  effort  to  define  terms, 
320. 

Liberty :  in  Rousseau's  pact,  19 ; 
only  in  non-social  man,  40 ;  not 
equality,  55  ;  Physiocrats  on,  59  ; 
not  insured  by  universal  suffrage, 
77  ;  ideas  of  Americans  on,  94  ;  de- 
fined, 118;  Humboldt  on  in- 
dividual, 149 ;  Humboldt's  ideal 
of,  152;  Austin  on,  232;  J.  S. 
Mill  on,  238;  Guizot  on,  266; 
politics  the  science  of,  370;  Stein 
on,  383  ;  relation  of  capital  to,  385. 

Lincoln,  Abraiiam  :  and  nationaUsm, 
298. 

Locke  :  Uked  by  Rousseau,  5  ;  com- 
pared with  Rousseau  on  state  of 
nature,  11,  15;  influence  in 
Rousseau's  social  pact,  18,  20 ; 
on  sovereignty,  21 ;  followed  by 
Ferguson,  70;  and  the  American 
Revolution,  91 ;  influenced  Paine. 
112;  relation  to  Humboldt,  153; 
followed  by  Constant,  260. 

Louis  XIV :    policy  of,  revived,  128- 

Louis  XV :  3 ;  suppresses  parle- 
ments,  49. 

Louis  XVI :  character  of,  86  ;  political 
agitation  in  reign  of,  87. 

Louis  XVIII :  grants  constitution, 
173. 

Louis  Philippe :    accession  of,  249. 

Mably :  social  and  political  ideas  of, 
51 ;   on  American  system,  99. 

Machiavelli :  and  Tocque\alle,  270 ; 
compared  with  Comte,  390. 

Maistre,  Joseph  de :  works  and 
doctrines,  190  et  seq. 

Majority :  Rousseau  on,  34 ;  Burke 
on.  181 ;  J.  S.  Mfll  on  rule  of,  241 ; 
Guizot  on  rule  of,  271 ;  Tocque- 
ville  on  tyranny  of,  277. 

Malthus :   on  fate  of  masses,  342. 

Marx,  Karl :  and  the  Communist 
Manifesto,  345 ;  doctrines  of, 
372  et  seq.;  Stein's  suggestion  of, 
377 ;    compared  with  Stein,  378. 

Mason,  George :  and  Virginia  Dec- 
laration of  Rights,  91. 

Massachusetts :  Constitution  of 
1780,  92 ;    right  of  reunion  in,  95 ; 


442 


INDEX 


on  the  constitutional  convention, 
98. 

Mazzini :  and  nationalism,  298 ;  on 
nationality,  322 ;  on  the  national 
state,  330. 

Mill,  James :  Benthamite  doctrine 
of,  235 ;    on  competition,  342. 

MUl,  John  Stuart:  works  and 
doctrines  of,  236  et  seq. 

Milton :  relation  to  Humboldt,  153  ; 
compared  with  J.  S.  MUl,  238. 

Ministry :  Bonald's  doctrine  of, 
187;    Constant's  theory  of,  260-1. 

Monarch :  relation  of,  to  represent- 
ative assembly,  252-3,  255 ;  has 
decisive  function  in  law-making, 
257 ;  Constant's  theory  of  func- 
tion of,  261  ;  German  theory  as 
to  relation  to  people,  279;  re- 
lation to  idea  of  nation,  288  et 
seq. 

Monarchy :  Rousseau  on,  31 ;  Kant 
on,  134 ;  influence  on  Fichte, 
148;  Hegel  on,  162;  Bonald 
on,  186 ;  Maistre  on,  191 ;  Haller 
on,  199 ;  Haller  on  species  of, 
203 ;  and  personality  of  state, 
301 ;  mainstay  of  modem  Uberty, 
386. 

Montesquieu :  reforming  influence 
of,  4 ;  liked  by  Rousseau,  5 ; 
compared  with  Rousseau  on  state 
of  nature,  8 ;  on  sovereignty,  21 ; 
suggestions  from,  29  ;  influence  on 
Rousseau,  43 ;  influence  on  social 
and  economic  reforms,  49 ;  re- 
lation of  Ferguson  to,  65 ;  on 
criminal  law,  71 ;  Kant  influenced 
by,  133  ;  Burke  on,  183  ;  followed 
by  Constant,  260;  and  Tocque- 
ville,  270;  on  influence  of  geog- 
raphy, 316;  sociological  influence 
of,  346;    influence  on  Comte,  390. 

Morality,  positive :    Austin  on,  225. 

Morals :  no  sphere  for  state  action, 
151. 

Mulford,  EUsha:  on  the  national 
state,  333. 

Napoleon,  Louis :  and  nationalism, 
298  ;    on  nationality,  322. 

Napoleon  Bonaparte :  French  gov- 
ernment under,  125 ;  imperial 
pohcy  of,  128 ;   British  idea  of,  172. 

Nation :  Sieyfes  on,  102 ;  above 
constitution,  103  ;  exclusive  holder 
of  sovereignty,  119;  right  of,  to 
change  constitution,   120 ;    vague- 


ness in  conception  of,  127 ;  re- 
lation to  constitution,  195 ;  im- 
plied in  constitutional  theory, 
291 ;  distinguished  from  people, 
292  ;  as  unit  of  race  and  language, 
311  et  seq.;  a  mode  of  The  Abso- 
lute, 314 ;  above  the  state,  315 ; 
as  a  geographic  unit,  316  et  seq.; 
confused  with  people  and  state,  320 ; 
and  nationality,  320  et  seq.; 
Renan's  definition  of,  338 ;  as 
source  of  authority,  422 ;  see  also 
People. 

Nationalism :  importance  of,  in 
nineteenth  century,  250;  decline 
of,  in  political   theory,   335. 

Nationality :  German  idealists  on, 
168 ;  in  Congress  of  Vienna,  294 ; 
aggressive  aspect  of,  299 ;  origin 
of  term  as  concrete,  322 ;  relation 
to  nation,  322  et  seq. ;  evolutionary 
doctrine  of,  323 ;  distinction  be- 
tween natural  and  political,  324. 

National  state :  influence  of  Rous- 
seau's doctrine  of  sovereignty  on, 
39  ;    theories  of,  326  et  seq. 

Natural  law :    see  Nature,  Law  of. 

Natural  man  :   see  Nature,  State  of. 

Natural  rights :  Physiocrats  on, 
59,  62;  Ferguson  on,  70;  Black- 
stone  on,  74-5 ;  appealed  to  by 
Americans,  83  ;  ideas  of  Americans 
on,  93 ;  in  French  constitutions, 
118  et  seq.;  a  cosmopolitical 
dogma,  127;  Kant  on,  132; 
Fichte  on,  139 ;  Bentham  on,  217, 
220,  222  ;  Austin  on,  234  ;  Comte 
on,  388 ;    Spencer  on,  398-400. 

Nature  :  Rousseau  on,  13  ;  Holbach 
on,  54 ;  Ferguson  on,  67 ;  in- 
equality the  rule  of,  197  ;  antithetic 
to  man,  378 ;  supersedes  God  as 
source  of  authority,  421. 

Nature,  Law  of  :  Rousseau  on  source 
of,  12 ;  Physiocrats  on,  60 ;  Ben- 
tham on,  217 ;  Spencer  on,  398-9. 

Nature,  State  of :  Rousseau  on,  7  et 
seq.;  Hobbes  and  Locke  on,  11, 
15;  Grotius  and  Pufendorf  on, 
15  ;  Holbach  on,  54  ;  Ferguson  on, 
67 ;  ideas  of  Americans  on,  92 ; 
Fichte  on,  139 ;  not  distinct  from 
civil  state,  198 ;  Bentham  on,  216. 

Necker  :   minister  of  finance,  86. 

Niebuhr :    on  race  principle,  294-5. 

Nobility  :  Bonald  on,  187. 

Nominalism :  of  Bentham  and  Austin, 
246  ;  of  Guizot,  264. 


INDEX 


443 


Order:    Comte's  doctrine  of,  391. 

Ordinance  power :  in  French  Chartc, 
253,  258 ;  in  Prussian  constitution, 
255. 

Organism :  Hegel's  application  of,  to 
state,  161 ;   theory  of  state  as,  301. 

Owen,  Robert :  early  work  and  in- 
fluence, 342 ;  his  social  system, 
350-1. 

Paine,  Thomas :  works  and  doctrines 
of,  110  et  seq.;  in  French  Assem- 
bhes,  116;  with  the  Girondists, 
121 ;  in  English  reform  movement, 
208  ;  nationalistic  influence  of,  292. 

Papacy  :  Maistre's  conception  of,  191. 

Particularism :  relation  to  national- 
ism, 332. 

Parties :  Rousseau  on,  25. 

Peace :  see  War. 

Pennsylvania:  "the  fatherland  of 
heroes,"  SO;  right  of  emigration 
in,  95. 

People :  ideas  of  American  Revo- 
lutionists on,  97 ;  a  group  of 
groups,  98 ;  vagueness  in  con- 
ception of,  127 ;  political  con- 
sciousness of,  makes  constitution, 
160;  Burke  on  sovereignty  of, 
180 ;  German  theory  as  to  relation 
to  monarch,  279 ;  implied  in  idea 
of  union-state,  284 ;  as  sovereign 
in  imion-state,  286-7 ;  implied 
in  constitutional  theory,  291 ; 
distinguished  from  nation,  292 
Savigny's  conception  of,  304 
Stahl's  idea  of,  306 ;  consciousness 
attribute  of,  302,  308;  confused 
with  nation  and  state,  320 ;  de- 
fined by  Bluntschli,  325 ;  not 
neces-sary  basis  of  state,  326 ; 
relation  to  population,  327 ;  re- 
lation to  state,  327  et  seq. ;  con- 
ceptions of,  in  recent  theory,  403 ; 
see  also  Nation. 

Personality  :  attribute  of  state,  300 ; 
monarchic  theory  of,  301 ;  re- 
publican theory  of,  302  ;  attribute 
of  people,  303  ;  Stahl's  doctrine  of, 
306  ;  Bluntschli's  doctrine  of,  307 
et  seq.;  principle  of  state,  378. 

Phalanx  :  Fourier's  project  of,  352. 

Physics,  social:   Comte's  use  of,  391. 

Physiocrats,  44  ;  economic  doctrine 
and  policy,  57  et  seq.;  political 
ideas,  59  et  seq. ;  relation  to  Hum- 
boldt, 153 ;  sociological  influence 
of,  346. 


Plato :  Kant's  relation  to,  135 ; 
Fichte's  resemblance  to,  146; 
relation  of  Hegel  to,  155. 

Plebiscite  :  in  the  Napoleonic  system, 
125  ;    theory  and  practice  of,  336. 

Poland  :  Rousseau's  suggestions  for, 
7  ;  partition  of,  169  ;  insurrection 
in,  249 ;  at  Congress  of  Vienna, 
293;    nationalism  of  1831,  296. 

Polybius :    and  Tocqueville,  270. 

Portugal :    insurrection  in,  248. 

Positivism  :   Comte's  system  of,  388. 

Poverty :    Utopian  socialists  on,  349. 

Powers  of  government :  ideas  of 
Americans  on,  96 ;  Paine's  clas- 
sification of,  115;  separation  of, 
guaranteed  by  constitution,  120 ; 
in  French  constitution  of  1793, 
123  ;  in  constitution  of  1795,  124 ; 
Kant  on,  132  ;  Hegel  on,  161  ;  Con- 
stant's classification  of,  260.  See 
also  Separation  of  Powers. 

Privileges :  in  France,  87 ;  SieySs 
on,  101. 

Progress :  Condorcet  on,  108 ; 
Comte's  doctrine  as  to,  391 ; 
Comte's  three  stages  of,  393. 

Proletariat :  at  strife  with  bour- 
geoisie, 372 ;    dictatorship  of,  385. 

Property:  Mably  preaches  equality 
in,  52 ;  Physiocrats  on,  59 ;  in 
American  Revolution,  82 ;  ideas 
of  Americans  on,  94 ;  in  French 
constitution,  119;  Fichte's  con- 
ception of,  140;  exists  only 
through  state,  141 ;  Hegel  on, 
157 ;  in  French  revolution,  340 ; 
Utopian  socialists  on,  349 ;  Saint- 
Simonians  on,  360;  Godwin  on, 
364 ;  in  what  sense  robbery, 
365 ;  Stein  on  influence  of,  in  class 
conflict,  381. 

Proudhon,  P.  J. :  anarchism  of,  344  ; 
doctrines  of,  365-70. 

Prussia :  eff'ect  of  Seven  Years'  War 
on,  45  ;  crushed  by  Napoleon,  145  ; 
under  constitution  of  1850,  255. 

Pufendorf :  liked  by  Rousseau,  5 ; 
compared  with  Rousseau  on  state 
of  nature,  15. 

Quesnay :  physiocratic  doctrine  of,  59. 

Race:   as  basis  of  nation,  311-2. 
Radicals,  English :   208-9. 
Ranke:  301. 

Reform :  of  English  Parliament, 
207,    209;     and   J.    S.    MUl,    242. 


444 


INDEX 


Religion :  state  not  to  influence, 
151 ;    see  also  Freedom  of. 

Renan,  Ernest:  on  nationality, 
337-8. 

Representation  :  rejected  by  Rous- 
seau, 34,  37 ;  in  American  Revo- 
lution, 82  ;  Sieyfes  on,  102  ;  Paine 
on,  113;  Kant  on,  133;  to  be 
based  on  classes,  not  individuals, 
163;  J.  S.  Mill  on,  240  et  seq.; 
Guizot  on  origin  of,  263 ;  recent 
ideas  of,  404 ;  re^new  of  theories 
concerning,  413^. 

Republic :  Rousseau's  definition  of, 
28 ;  exclusively  for  small  states, 
99;  defined  by  Paine,  113;  Haller 
on,  199,  204 ;  review  of  theories 
concerning,  413-4. 

Resistance  to  oppression :  a  natural 
right,  118. 

Revolution,  American :  causes  and 
progress  of,  82  et  seq.;  principles 
of,  91 ;  tested  eighteenth-century 
philosophy,  126. 

Revolution,  French :  causes  and  ori- 
gin of,  86  et  seq. ;  tested  eighteenth- 
century  philosophy,  126. 

Revolution,  industrial :  in  England, 
341. 

Revolution,  social :  Marx  on,  373  ; 
Stein  on,  380. 

Rhode  Island :  and  the  American 
nation,  293. 

Ricardo :  and  Bentham,  211;  on 
rights  of  land  and  capital,  342. 

Right  of  resistance :  Kant  on,  134  ; 
Bentham  on,  222. 

Right  to  labor:  in  French  con- 
stitution of  1793,  122 ;  Fichte  on, 
145;    Louis  Blanc  and,  371. 

Right  to  vote :  J.  S.  Mill  on,  242. 

Rights :  Bentham  on,  220. 

Riviere,  Mercier  de  la :  relations 
with  Catherine  II,  48;  physio- 
cratic  doctrine  of,  59. 

Romans  (ancient) :  ideas  as  to 
source  of  authority,  418  et  seq. 

Rousseau :  personaUty,  1,  2 ;  en- 
vironment, 3  ;  source  and  nature 
of  works,  5-7 ;  on  state  of  nature, 
8  et  seq.;  on  the  natural  man, 
12-15 ;  social  pact  analyzed,  16 
et  seq. ;  on  sovereign,  22-26 ; 
on  law,  27 ;  distinguishes  govern- 
ment from  sovereign,  29 ;  on 
forms  of  government,  31 ;  on 
institution  of  government,  33 ; 
on  representative  government,  34  ; 


on  majority  rule,  34-35 ;  on 
periodical  assemblies  of  the 
sovereign,  37;  influence  of  his 
doctrine  of  general  will,  39-40; 
and  of  sovereign  as  law-maker, 
41-42 ;  on  a  civil  religion,  43 ; 
followed  by  Mably,  opposed  by 
Ics  philosophes,  52 ;  followed  by 
Siej'fes,  103 ;  Kant  influenced  by, 
133 ;  criticised  by  Hegel,  155 ; 
Burke  on,  183 ;  compared  with 
utilitarians,  244 ;  resemblance  of 
Proudhon  to,  367. 
Russo-Turkish  war :  250. 

Saint-Simon :  rise  of  liis  system,  343 ; 
sociological  influence  of,  346 : 
works  and  doctrines  of,  355-8; 
Comte  a  follower  of,  387. 

Saint-Simonians :  distinguished  from 
Saint^Simon,  355 ;  doctrines  of, 
359-362. 

Savigny  :  on  people  and  state,  304  ; 
compared  with  Fichte,  315-6 ; 
on  relation  of  state  to  nationaUty, 
328. 

Schleiermacher :  doctrines  of,  303; 
on  geography  and  state,  318. 

Security:  a  natural  right,  118;  chief 
end  of  state,  150. 

Separation  of  powers:  in  Americaa 
constitutions,  96 ;  essential  to 
constitution,  120 ;  conflict  of 
liberals  and  conservatives  over, 
258-9 ;  Constant  on,  260 ;  Comte 
on,  388 ;  see  also  Powers  of 
Government. 

Serfdom  :    Saint-Simonians  on,  360. 

Seven  Years'  War :  effects  of,  45. 

Siey^s:  doctrines  of,  100  et  seq.;  in 
French  Assemblies,  116. 

Slavery :  Hegel  on,  157 ;  Saint- 
Simonians  on,  360;  in  Comte's 
three  stages,  393 ;  review  of 
theories  of,  410. 

Smith,  Adam :  doctrines  of,  64 ; 
sociological  influence  of,  346. 

Social  etliics  (Sittlichkeit)  :  Hegel 
on,  157. 

Socialism :  importance  of,  in  nine- 
teenth centurj,  250 ;  rise  of,  340 
et  seq. ;  doctrines  of  Utopian,  348 
et  seq.;  Utopian  and  revolutionary 
distinguished,  348  ;  transition  from 
Utopian  to  revolutionary,  371 ; 
Marx  on  aims  of,  374 ;  Stein's 
history  of,  377;  Stein's  dis- 
tinction   from    communism,    383 ; 


INDEX 


445 


aims  to  put  labor  over  capital, 
383—4 ;  compared  with  anarchism, 
404  ;    doctrinal  ancestry  of,  405—6. 

Society :  product  of  instinct,  not 
reason,  68;  distinguished  from 
state,  112;  dominates  constitution, 
152;  Hegel's  peculiar  conception 
of,  158;  Burke  on,  178;  defined 
by  Bonald,  186 ;  Haller's  con- 
ception of,  198;  J.  S.  Mill's  use 
of  term,  236 ;  Guizot's  individual- 
istic conception,  264 ;  distin- 
guished from  state,  345 ;  based 
on  sjTnpathy  and  benevolence, 
349 ;  based  on  feehngs,  not 
reason,  352 ;  Fourier  on  classes  in, 
353 ;  Saint-Simon  on  classes  in, 
355—7 ;  Saint-Simonians  on  his- 
torical phases  of,  359;  Saint- 
Simonians  on  classes  in,  360 ; 
based  on  feeling,  not  reason,  361 ; 
Proudhon  on  basis  of,  366 ;  shaped 
by  class  struggles,  372 ;  Stein's 
view  as  to  classes  in,  377 ;  conflict 
with  state,  378 ;  self-interest  prin- 
ciple of,  378 ;  Comte's  method  in 
science  of,  389 ;  force  the  basis  of, 
392  ;  implied  in  government,  392  ; 
analogy  of,  with  physical  beings, 
397 ;  distinguished  from  govern- 
ment, 397 ;  militant  and  in- 
dustrial types  of,  398,  400;  rela- 
tive importance  in  recent  theory, 
402 ;  importance  of  distinction 
from  state,  414-5 ;  as  source  of 
authority,  422. 

Society,  natural :  see  Nature,  State  of. 

Society,  political :  see  Government 
and  State. 

Sociology  :  rise  of,  340  et  seq. ;  lean- 
ing of  Stein  to,  386 ;  Comte's  use 
of  term,  387 ;  relation  to  biology, 
394 ;  essence  of  Spencer's,  399 ; 
doctrinal  ancestry  of,  406. 

Sovereignty:  Rousseau  illogical  on, 
19 ;  contrasting  views  of  mon- 
archists and  Uberals  on,  21 ; 
Rousseau's  theory  of,  22  et  seq.; 
Rousseau's  doctrine  and  national 
state,  39 ;  not  soiu'ce  of  law,  60 ; 
not  unlimited,  69 ;  Blackstone 
on,  74 ;  American  Revolutionists 
on,  95,  96 ;  progress  in  theory  of 
popular,  104  ;  French  constitution 
on,  119;  in  constitution  of  1793, 
122;  Kant  on,  133;  Fichte  on, 
146 ;  essentially  monarchic,  162  ; 
Burke  on,   180;    Bonald  on,   188; 


a  matter  of  fact,  not  right,  202 ; 
Bentham  on,  218;  Austin  on, 
226  ct  seq.;  J.  S.  Mill  on,  239, 
240;  distinguished  into  legal  and 
political,  246  ;  Constant  on,  259  ; 
Guizot  on,  263 ;  in  reason  only, 
265;  Tocqueville's  conception  of, 
272 ;  theory  of  spheres  of  in 
U.  S.,  272-3  ;  Waitz  on,  284  ;  Web- 
ster and  Calhoun  on,  284 ;  and 
the  monarchic  principle,  285 ;  re- 
lation to  idea  of  nation,  288  et  seq.; 
ascribed  to  state,  304 ;  review  of 
theories  concerning,   414. 

Spain  :   insurrection  in,  248. 

Sparta :  Rousseau's  use  of,  6 ; 
ephors  in,  147. 

Spencer,  Herbert:  and  sociology, 
347 ;  works  and  doctrines  of, 
395  et  seq. 

Spinoza :  compared  with  Rousseau, 
43. 

Stahl,  F.  J.:  doctrines  of,  305-6; 
on  relation  of  state  to  nationality, 
328 ;    followed  by  Mulford,  333. 

Stamp  Act :  82. 

State :  means,  not  end,  149 ;  Hegel's 
idea  of,  159  ;  German  idealists  on, 
168 ;  mystery  in,  191 ;  Haller's 
conception  of,  199 ;  not  distinct 
from  other  associations,  201  ;  term 
not  used  by  J.  S.  Mill,  236;  not 
distinct  from  sum  of  individuals, 
247 ;  consists  of  king  and  people, 
279;  as  person,  299  et  seq.;  his- 
torical theory  of,  301,  304-5; 
Stahl  on,  305-6;  defined  by 
Bluntschli,  310;  above  nation, 
316;  confused  with  nation  and 
people,  320;  relation  to  people, 
327  et  seq.;  distinguished  from 
society,  345 ;  conflict  with  society, 
378;  Spencer's  conception  of, 
397,  400  n. ;  relative  importance 
in  recent  theory,  402 ;  importance 
of  distinction  from  society,  414-5. 

State  of  Nature :  see  Nature,  State 
of. 

State-sovereignty :  and  the  national 
state,  332-3. 

Statics,  social :  in  Comte,  391 ; 
Spencer's  use  of,  396  note. 

Stein,  Lorenz  von :  works  and 
doctrines  of,  377  et  seq. 

Stoics :  idea  as  to  source  of  au- 
thority, 417. 

Sydney,  Algernon :  20 ;  and  the 
American  Revolution,  91. 


446 


INDEX 


Sympathy:  basis  of  society,  361, 
366. 

Tennis  court :   oath  of  the,  88. 

Third  Estate:  Siey^s  on,  101  et 
seq.;  becomes  National  Assembly, 
105;  becomes  t>Tannic  bour- 
geoisie, 372-3. 

Thompson,  William:  on  rent  and 
profits,  343. 

Tocqueville:  on  American  de- 
mocracy, 270  et  seq. 

Toleration  :  see  Religion. 

Turgot :  on  American  system,  99 ; 
practical  work  of,  48,  62;  doc- 
trines of,  63 ;  minister  of  finance, 
86. 

Tyrannicide :  in  constitution  of  1793, 
122. 

Uhland :    and  nationahsm,  298. 

Union-state:  effort  to  reahze  in 
Germany,  282 ;  basic  feature  of, 
283;  republican  type  and  mo- 
narchic type,  283;  defined  by 
Waitz,  284 ;  and  the  monarchic 
principle  in  Germany,  285 ;  and 
popular  sovereignty,  286-7 ;  a 
imitary  state,  287;  relation  to 
idea  of  nation,  288  et  seq. ;  Mulford 
on,  333. 

United  States :  Austin  on  sovereignty 
in,  231 ;  interest  of  Europe  in, 
revived  by  Tocqueville,  271 ;  con- 
fused ideas  of  sovereignty  in,  272 ; 
influence  of  its  constitution  in 
Frankfort  Convention,  282  ;  con- 
ception of  union-state  in,  287 ; 
use  of  plebiscite  in,  336. 
Utilitarians  :  compared  with  German 
idealists,  244-5;  on  relation  of 
state  to  nationality,  327. 
Utility.    Bentham's  doctrine  of,  213. 

Vendee,  La  :  and  the  French  nation, 
293. 


Vico  :    sociological  influence  of,  346. 

Virginia :  Declaration  of  Rights  of, 
92. 

Voltaire :  4 ;  relations  with  Frederick 
the  Great,  48;  relation  to  Hum- 
boldt, 153. 

Wage-earners :  beginnings  as  social 
class,  341 ;  Saint-Simonians  on 
exploitation  of,  360;  have  right 
to  product,  365 ;  Marx  on  rule  of, 
375 ;  Stein  on  conflict  with  cap- 
italists, 382 :    see  also  Proletariat. 

Waitz :  defines  state,  284 ;  on 
union-state  and  sovereignty,  284; 
and  nationalism,  298 ;  on  people 
and  state,  305  ;  on  relation  of  state 
to  nationality,  328. 

War:  necessary  to  progress,  67; 
Fichte  on  extinction  of,  145; 
salutary  influence  of,  151 ;  in- 
e\'i table  and  beneficial,  164  ;  Saints 
Simonians  on,  360;  Godwin  on, 
i      363;    Spencer  on,  401. 

Wealth :  see  Property. 

Webster,  Daniel:  on  sovereignty, 
284. 

Whigs :  and  the  French  Revolution, 
176 ;    policy  of,  207,  209. 

Will :  basis  of  sovereignty,  22 ; 
general  not  total,  25 ;  conflicts 
of,  in  state,  30;  in  Kant's  con- 
ception of  law,  136;  in  Fichte'a 
system,  139  et  seq.;  basis  of 
Hegel's  system,  155;  German 
idealists  on,  167;  subordinate  to 
duty,  180;  futility  of,  in  poUtics, 
192 ;  essence  of  law,  218 ;  no  basis 
of  political  obhgation,  264;  of 
a  people,  306,  308;  as  basis  of 
nationality,  320;  relation  to 
nationalism,  334;  no  basis  for 
sovereignty  or  law,  368-9. 

World-history  ;  Hegel  on,  164  ;  Son- 
aid's  interpretation  of,  186. 

World-state:  relation  to  national 
state,  332. 


X 


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